37th murderer executed in U.S. in 2009
1173rd murderer executed in U.S. since 1976
2nd murderer executed in Florida in 2009
68th murderer executed in Florida since 1976

Since 1976

Date of Execution

State

Method

Murderer(Race/Sex/Age at Murder-Execution)

Date ofBirth

Victim(s)(Race/Sex/Age at Murder)

Date ofMurder

Method ofMurder

Relationshipto Murderer

Date ofSentence

1173

(37)

08-19-09

FL

Lethal Injection

John Richard Marek

W / M / 21 - 47

09-17-61

Adela Marie Simmons

W / F / 45

06-17-83

Strangulation With Bandana

None

07-03-84

Summary:
The bruised, nude, strangled, and burned body of Adela Simmons was discovered at 7:00 a.m. on June 17, 1983 in the Lifeguard area of Dania Beach. Three and a half hours earlier, Marek and accomplice Raymond Wigley were observed in a stolen vehicle approximately 100 yards from the lifeguard stand. Simmons and Jean Trach had been vacationing in Clearwater the day before and were on their way home to Miami when their car broke down at 11:00 p.m. Marek and Wigley drove up in a pickup truck and offered to take one of the women to a tollbooth, where she would be allowed to call for help. Jean Trach warned Adela not to take the ride, but she took it anyway. In statements to police and testimony in court, Marek claimed to have been asleep off and on when Simmons was murdered by Wigley. Wigley stated that once in their truck, Simmons was forced to perform oral sex on the men and was repeatedly sexually assaulted. He also stated that at the beach, both men had dragged her into the observation area of a lifeguard stand, her shorts were taken off and that the men burned her pubic hairs and one of her fingers. Wigley stated that she was strangled to death with a bandana between the hours of 3:00 and 3:30 a.m.

Sentenced as follows: Count I: First-Degree Murder – Death
Count II: Kidnapping – 30 years to be served consecutively to Count I.
Count III: Lesser Included Offense of Criminal Attempt: Burglary with an Assault – 9 years to be served consecutively to Count I and concurrently with Count II.
Count IV: Lesser Included Offense of Battery – Sentence suspended by the Court.
Count V: Lesser Included Offense of Battery – Sentence suspended by the Court.

STARKE — John Richard Marek lay on a table, his arms strapped down with brown leather belts, a white sheet covering his body.
He hadn't taken a sedative, but he looked sedate.
He had spent the day preparing for this moment — the last of his life.

At 11 a.m. Wednesday, he ate a big meal at the Florida State Prison —a BLT sandwich, berries with whipped cream, french fries, onion rings, Dr Pepper. He met with an Episcopal priest. He spent three hours with his girlfriend, a pen pal who lives in Germany. She was the only visitor he'd had in three years. People who saw him said he was calm.

Adela Simmons would have been 71 now.
She would have seen her two daughters graduate from college and get married. She would have welcomed five granddaughters. She could have earned the master's degree she wanted.
But there was no chance for that.

On June 17, 1983, Simmons was driving back to her home in Miami from a Clearwater vacation. She was with a friend, Jean Trach. Their car kept stalling on the Florida Turnpike in Palm Beach County.

Marek and a friend, Raymond Wigley, stopped to give them a ride. Simmons, an adventurous, brave woman who once drove alone for eight weeks across the country for a vacation, went with them. Trach stayed behind.

Instead of taking her to a gas station for help, the two men drove 60 miles to Dania, where they raped, tortured and strangled her with a bandana. Her body was found in a beach lifeguard shack.

Simmons was a petite, dark-haired beauty born in Yugoslavia. She left the country after World War II with her family and settled in Venezuela, and she moved to South Florida after getting married.
She became a widow at age 37. She raised two daughters, Aileen Simmons Bantau and Vivienne Yao, on her own. She earned a bachelor's degree. She loved working on cars, taking photographs, going to the beach, dancing. She loved traveling. She had been to Europe, Mexico, the Caribbean.

"My mother was vivacious, adventurous and full of life," said her daughter Aileen Simmons Bantau, who didn't attend the execution. "That's how I remember her. I feel like I have relived the event all over again and have been grieving her loss once again. I still feel incredibly sad that my sister and I lost our mother when and how we did."

She didn't feel vengeful. Just justified.
"I have absolutely no feelings about John Richard Marek," she said.

Marek, 47, appealed his sentence to the last minute.
His defense attorney had argued that it wasn't Marek, but Raymond Wigley, who did the killing. He claimed Wigley told other inmates about it.
But Wigley couldn't help him. He had been murdered in prison in 2000 while serving a life sentence for the crimes.
His killer also was executed.

Andrei Trach, son of Simmons' friend Jean Trach, attended the execution with his sister, Tanya Trach, and Bantau's husband, Alan Bantau. The waiting had gone on long enough, they said.
"That animal was afforded the time to say goodbye to the ones he loved and make peace with his maker," he said. "Ms. Adela Simmons, the victim, was afforded no such luxury."

At 6:20 p.m., Marek mumbled his last words, nose in the air.
"Jesus, remember the sinners."

He mouthed the Lord's prayer to himself as chemicals started coursing through his veins. His mouth went slack. His face went pale.
He was dead in 13 minutes.

TALLAHASSEE, Fla. (AP) -- Gov. Charlie Crist silently held two framed photos of Adela Marie Simmons as a voice came over his speaker phone Wednesday evening, telling him the next in a series of eight syringes was being injected into the arm of the man who killed her.

Crist's office was silent except the whir of the air conditioner as his chief of staff and three members of his legal team sat and listened with him for each update in the execution of John Richard Marek. After the last syringe was injected, the voice said, "Team leaders have a flatline" and a few seconds later, "The doctor has confirmed he is deceased. Time of death 6:33."

"Thank you, warden," Crist said before hanging up the phone and sitting silently for a few moments at his desk, where he had several photos of Simmons. "She was a beautiful lady."

Carrying out an execution is one of the most serious responsibilities a governor has, and Crist allowed The Associated Press to observe him during the last 48 minutes of Marek's life.

At 5:45, 15 minutes before the execution was set to begin, Crist sat at his desk, a stone statue of Jesus with arms outstretched facing him as he reviewed a binder containing the execution procedures. Across the room, Andrew Atkinson was on the phone with Attorney General Bill McCollum and through an open door to an adjacent office Rick Figlio was on the phone with the Supreme Court. Chief of staff Eric Eikenberg sat nearby.

Crist's top lawyer, Rob Wheeler, arrived and told Crist that McCollum's office was sending faxes confirming Marek's three final appeals had been denied. After Crist reviewed them, Wheeler contacted Florida State Prison, where one visiting warden carried out the sentence and another gave Crist every detail.
"The governor has received the denials and has asked you to proceed," Wheeler said.

Crist and his team maintained serious expressions and said nothing as Warden Barry Reddish described each step.
"The cell door is now being opened," Reddish said. "The inmate has been placed on the gurney."

At 5:54, Reddish said, "The inmate has remained calm through the entire process." He then described restraints being placed on Marek and tourniquets on his arms. "The inmate continues to remain calm. He has not offered any physical resistance to the team."

Crist heard that an EKG had been placed on Marek and was working. "Thank you," he said. At 6:01 p.m., he was told IVs were being inserted into Marek's arms. As the procedure continued, Crist briefly got up, walked to a window and stared at the courtyard outside where additional security had been placed for the execution. He sat back down seconds later.

The updates continued:
- 6:05, "The needle has been inserted into the inmate's left arm."
- 6:06, "The inmate continues to remain calm."
- 6:09, "The needle has now been inserted in the inmate's right arm."
- 6:11, "The sheet that covers the inmate is now being placed over him."

At that point Crist picked up photos of Simmons, who was kidnapped and raped after her car broke down on the side of a highway in 1983. He still said nothing as Reddish told him Marek planned to have a one-line statement before the execution. "Something to the effect of 'Jesus remember us,' or something similar to that."

At 6:19, the medical team signed the final paperwork that the lethal injections could begin. Crist asked if McCollum was reporting any last minute stays. Atkinson told him no. "Is there anything from the Supreme Court?" Crist asked. Again, the answer was no.

"You may carry out the sentence," Crist said.

At 6:21, Reddish said Marek mumbled something, but he couldn't hear what. The injections began. Crist was updated at the start and finish of all eight. Atkinson relayed the details to McCollum. One minute later Reddish said Marek appeared unconscious. At 6:24, three injections were complete and doctors checked to make sure Marek was unconscious. Twelve minutes later, the execution was over.

"This is a difficult thing to do. It's a very solemn, serious act," Crist said in a soft voice when he finally rose from his chair. "Somebody was just put to death, but what goes through my mind is what the victim had to go through and this is a horrific, heinous crime and justice must be done. And now it has been."

STARKE -- John Richard Marek was executed Wednesday for murdering a 45-year-old mother of two whose raped, tortured and strangled body was dumped in Dania Beach after her car broke down on Florida's Turnpike 26 years ago.

Marek, 47, died at 6:33 p.m. after receiving a lethal injection at the Florida State Prison.

He was condemned for the first-degree murder and kidnapping of Adela Marie Simmons, whose nude body was found the day after she climbed into a pickup truck to get help after a friend's car broke down on the turnpike in Palm Beach County in 1983.

Marek made a last statement before he died, but it was inaudible to members of the news media and witnesses, who included Simmons' son-in-law.

Marek's appeals were turned down by the U.S. and Florida supreme courts on Wednesday. He had claimed that the other man in the truck, Raymond Wigley, killed Simmons.
Martin McClain, Marek's attorney, tracked down inmates who said Wigley told them he was the killer. Wigley, who had received a life sentence, was murdered in prison in 2000.

Simmons and her friend Jean Trach were returning to Miami from a vacation in Clearwater on June 16, 1983, when Trach's car began stalling. As the Barry University co-workers neared Jupiter on the turnpike, the car wouldn't restart.

Marek and Wigley stopped their pickup truck and offered to take one of them to the next toll booth to call for help. Simmons volunteered over Trach's warnings.

A police officer stopped Marek and Wigley about 3:30 a.m. as they walked away from a Dania Beach lifeguard stand. They got into a pickup truck -- later determined to be stolen -- and drove away.
Simmons' body was found inside the lifeguard tower about 7 a.m.

That evening, Wigley was arrested in Daytona Beacha driving the truck. Inside was a gold watch, a gold pendant and gold earring belonging to Simmons, and a gun. Marek was arrested in Daytona Shores.

Marek testified that after they picked up Simmons, he fell asleep. When he awoke, he said the woman was not in the truck. He testified Wigley told him he had dropped her off at a gas station. He said he again fell asleep and that when he woke, he was on the beach.
Fingerprints found at the lifeguard station matched both Wigley and Marek, but only Marek's prints were found inside the observation deck, where the body was found.

Wigley testified that the victim was forced to perform oral sex and was repeatedly sexually assaulted.

Marek had a three-hour visit Wednesday from his girlfriend, Marion Dollinger from Eppelheim, Germany, said Gretl Plessinger, a Department of Correction spokeswoman. She said he was calm and quiet in the hours before his death.
Marek met with an Episcopalian minister in the afternoon. He ordered a last meal of a bacon, lettuce and tomato sandwich with mayonnaise and wheat bread, onion rings, french fries, blueberries and strawberries and whipped cream, and a Dr Pepper.

About 20 death penalty opponents gathered in a field outside the prison to protest the execution.
``People think that because we protest the death penalty we're in favor of what people did,'' said Martha Lushman, 47, of Palm Bay. ``No, we don't agree with what they did. They did wrong. But we don't believe -- I don't believe -- it's our decision to terminate their life.''

Marek's was the 68th Florida execution since the death penalty was reinstated in 1979, the 24th by injection and the second this year.

``It's a question of justice. The death penalty doesn't serve any use in our modern society. It should be abolished, at least in favor of life [in prison] without parole,'' said Joseph Koechler, 66, from Ormond Beach.

The State of Florida executed John Richard Marek today at 6:33 p.m. ET by lethal injection. Marek was 47 years old and had spent 26 years in prison for the rape, torture, and strangulation death of Adela Marie Simmons.

Traveling with her friend on June 16, 1983, Adela Simmons and Jean Trach had been on vacationing in Clearwater, Florida and were on their way home to Miami. The car they were driving began to have difficulty and the car stalled at approximately 11:00 p.m.. It was then that two men in a pickup truck offered them help. They offered to take one of the women to a tollbooth, where she would be allowed to call for help. Jean Trach warned Adela not to take the ride, but she took it anyway. “I told them I absolutely wasn't going with them. But Adela the whole time was saying we couldn't just stay out there. She told me: 'You have to trust someone sometime.' States a report from the Palm Beach Post. Adela never realized that ride would end her life. Her dead body was found nude the next day.

The two men, John Richard Marek and Raymond Wigley, had been spotted by a police officer and stopped as they left a lifeguard stand in Dania Beach, at 3:30 in the morning. Four hours later, the body of Adela Simmons was discovered deceased inside that stand. The truck the men were driving had been stolen. Later that evening, Wigley was apprehended while driving the truck. Marek was captured later at Daytona Shores. Jewelry belonging to Adela Simmons was discovered inside the stolen vehicle. Though there was a gun in the vehicle, it was determined that Simmons was strangled to death.

Marek maintained his claim that it was Wigley who killed Simmons for the past 26 years. Though an attorney for John Marek had found inmates who claimed that Wigley had told them he was the murderer, John Marek’s appeals were denied. Raymond Wigley died in prison while serving a life sentence in 2000; he was murdered.

During testimony, John Richard Marek and Raymond Wigley revealed some of the last moments of Adela Simmons’ life, while Marek continued to claim that it was Wigley who committed the murder. He stated that after they picked up Simmons, they drove and that he fell asleep. When he awoke, Simmons was not in the vehicle and that Wigley stated he had dropped her off at a gas station. Marek then stated in his testimony that he fell asleep again, and when he woke, he was at the beach with Wigley.

Wigley testified that Adela Simmons was forced to perform oral sex on the men and had been repeatedly sexually assaulted. He also stated that at the beach, both men had dragged her into the observation area of a lifeguard stand, her shorts were taken off and that the men burned her pubic hairs and one of her fingers. Wigley stated that she was strangled to death with a bandana between the hours of 3:00 and 3:30 p.m. It was at 3:30, that both men were questioned by a police officer, (see part 1) who observed the stolen vehicle the men were driving approximately 100 yards from the lifeguard stand. Adela Simmons body was discovered at 7:00 a.m., on June 17, 1983 in the Lifeguard area, bruised, nude, strangled, and burned.

Adela Simmons left behind two daughters, Vivenne Yao and Aileen Simons Bantau; both daughters chose not to extend John Marek’s execution, however, Adela Simmons’ son-in-law, whom she never had the opportunity to meet, Alan chose to attend. After the execution he spoke. He stated, “It's painful for me to think about how she spent her last evening alive, how she suffered at the hands of John Richard Marek and Raymond Wigley. Nothing prepares you for losing someone you love in such a horrible manner.”

In addition to Simmons’ son-in-law, Jean Trach’s son and daughter attended the execution in her place. Jean’s son, Andrei also spoke after the execution. He stated, “I have no pity for the animal that was executed this evening. He got off easy. He's with his maker and his maker's wrath. I pray God shows no pity on his soul.”

Martin McClain, John Marek’s attorney of 21 years, who repeatedly filed appeals for his client, however, did not attend the execution.

Around 11 p.m. on 06/16/83, two women were returning home from a vacation via the Florida Turnpike when their car broke down. John Marek and Raymond Wigley stopped and attempted to fix the two women’s car. When Marek and Wigley were unable to fix the car, Marek persuaded one of the women, Adella Marie Simmons, to ride with the two men to a service station.

Marek and Wigley took the 47-year-old victim to a desolate beach approximately 60 miles from the car. The two men dragged Simmons to the observation room of a lifeguard stand. In the observation room, Simmons’ shorts were removed, and her pubic hairs and one finger were burned. Wigley testified that the victim was forced to perform oral sex and was sexually assaulted repeatedly. Simmons was then strangled with a bandana at approximately 3:00 to 3:30 a.m.

At approximately 3:30 a.m. on 06/17/83, an officer observed a truck parked approximately 100 yards from the lifeguard tower. The officer spoke with both Wigley and Marek before releasing them. Around 7:00 a.m., a lifeguard found the victim’s body. At 11:30 that night, both Wigley and Marek were arrested because the truck they were driving was stolen. When the truck was searched, the Simmons’ jewelry and a gun were found. The arrest led to both Wigley and Marek being arrested for the murder of Simmons.

Fingerprints found at the lifeguard tower matched both Wigley and Marek. Only Marek’s prints were found inside the observation deck where Simmons’ body was found.

Codefendant Information:

Raymond Dewayne Wigley (DC# 094065)

Wigley was sentenced on 05/29/84 as follows (CC# 83-7088):
Count I: First-Degree Murder – Life with 25 years mandatory
Count II: Kidnapping – 12 years to run consecutive with Count I
Count III: Burglary – 5 years to run consecutive to Count I
Count IV: Sexual Battery – 90 years to run consecutive to Count I

All of these sentences are to run consecutive to the six months that Wigley was serving for contempt of court.

07/03/84 Sentenced as follows: Count I: First-Degree Murder – Death
Count II: Kidnapping – 30 years to be served consecutively to Count I.
Count III: Lesser Included Offense of Criminal Attempt: Burglary with an Assault – 9 years to be served consecutively to Count I and concurrently with Count II.
Count IV: Lesser Included Offense of Battery – Sentence suspended by the Court.
Count V: Lesser Included Offense of Battery – Sentence suspended by the Court.

The Habeas Appeal filed to the United States Court of Appeals, 11th Circuit, was pending for four years. The 3.850 Motion filed to the Circuit Court on 07/26/93 was denied 10 years later on 09/05/03.

Case Information:

On 09/04/84, Marek filed a Direct Appeal to the Florida Supreme Court. Among several issues raised within the appeal, the main issue was that the trial judge erred in sentencing Marek to death while Wigley was sentenced to life. The Court found this argument to be without merit and affirmed Marek’s conviction and sentence on 06/26/86. The rehearing was denied on 09/08/86 and the mandate was issued on 10/08/86.

Marek filed a 3.850 Motion to the Circuit Court on 10/10/88. The motion was denied on 11/07/88.

On 10/12/88, Marek filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court. On 11/07/88, he filed a 3.850 Appeal to the same court. The Court found no basis for the Habeas Corpus relief and affirmed the trial court’s denial of the 3.850 Motion on 05/11/89. The rehearing was denied on 08/29/89.

On 10/10/89, Marek filed a Petition for Writ of Habeas Corpus to the United States District Court, which was denied on 10/01/90. He then filed a Habeas Appeal to the United States Court of Appeal, 11th Circuit on 12/28/90. He raised five issues on appeal. The Court of Appeals found no merit in the ineffective counsel claims and affirmed the USDC judge’s decision on the remaining issues. Therefore, the Court of Appeals affirmed the USDC’s denial of relief on 08/14/95. The rehearing was denied on 11/06/95 and the mandate was issued on 11/14/95.

Marek filed another Petition for Writ of Habeas Corpus to the Florida Supreme Court on 08/18/92. The main issue raised in the petition was that the jury received unconstitutional instructions pertaining to the application of the heinous, atrocious, and cruel aggravating factor. The issue was found to be procedurally barred. The petition was denied 09/02/93. The rehearing was denied on 11/17/93.

On 07/26/93, Marek filed another 3.850 Motion to the Circuit Court, which was denied 09/05/03.

On 02/15/94, Marek filed a Petition for Writ of Certiorari to the United States Supreme Court, pertaining to the Florida Supreme Court’s denial of the Habeas petition. The petition was denied on 05/16/94. He then filed another Petition for Writ of Certiorari to the United States Supreme Court, pertaining to the United States Court of Appeals’, 11th Circuit, affirmation of the USDC’s denial of the Habeas petition on 05/28/96. The petition was denied on 10/07/96. On 09/21/06, the Motion for Rehearing was denied.

On 02/16/04, Marek filed a 3.850 Appeal to the Florida Supreme Court. Subsequently, Marek filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court on 08/22/05.

On 08/24/05, the petition was stricken for non-compliance (exceeding 50 pages in length) with Florida Rule of Appellate Procedure 9.100; on 09/06/05, a proper petition was filed. Marek’s Motion to Continue Oral Argument was granted on 05/11/06; thus, the 3.850 Appeal and the Habeas Petition, which were scheduled for oral argument on 06/0706, had been removed from the oral argument calendar. Although the Court initially scheduled oral argument for these cases, the Court concluded, upon further review, that it was unnecessary in light of the clarity of the issues and the successive posture of the cases. Finding no merit to any of Marek’s claims, the Court affirmed the denial of his 3.850 Motion and denied his Habeas Petition on 06/16/06. On 09/21/06, the Motion for Rehearing was denied.

On 12/20/06, Marek filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on 04/23/07.

On 05/11/07, Marek filed a 3.851 Motion in the Circuit Court. On 07/18/08, Marek filed an amended motion in the Circuit Court. This 3.851 Motion was denied on 04/23/09.

On 04/29/09, Marek filed a 3.851 Appeal in the Florida Supreme Court. Oral Arguments were held on 05/04/09. On 05/08/09, the Florida Supreme Court affirmed the lower court’s disposition and denied the 3.851 Appeal. On 05/08/09, a mandate was issued in this case.

On 05/04/09, Marek filed a 3.851 Motion in the Circuit Court. An emergency hearing was held on 05/06/09. This motion was denied on 05/08/09.

On 05/09/09, Marek filed a 3.851 Appeal in the Florida Supreme Court. On 05/11/09, Marek filed a Motion for Stay of Execution and Request for Oral Arguments. Both of these requests were granted the same day. The Florida Supreme Court granted a stay of execution pending Oral Arguments, which was held on 05/20/09. On 05/21/09, the Florida Supreme Court reversed the lower court’s denial of the 3.851 motion and remanded for a new evidentiary hearing in the circuit court under a different judge. A new order is due 30 days from 05/21/09.

On 06/02/09, an Evidentiary Hearing was held in the Circuit Court. On 06/04/09, Marek filed a 3.851 Motion which was denied on 06/19/09.

On 06/25/09, Marek filed a 3.851 Appeal in the Florida Supreme Court. Oral Arguments were held 07/01/09. On 07/16/09, the Florida Supreme Court affirmed the lower court’s disposition and denied the 3.581 Appeal, and lifted the Stay of Execution. A mandate was issued on 07/16/09.

On 08/06/09, Marek filed a Petition for Writ of Certiorari to the United States Supreme Court. This case is pending.

On 08/05/09, Marek filed a 3.851 Motion in the Circuit Court. This case is pending.

This tragic incident began on June 16, 1983, when Adella Simmons and her Barry University co-worker were returning home from a vacation. Adella's companion, Jean Trach, testified that when the car in which the two women were riding broke down on the Florida Turnpike near Jupiter, John Richard Marek, who was driving a pickup truck, pulled over. His companion, Raymond Wigley, stood in the darkness while Marek was talkative and friendly and unsuccessfully attempted to fix the car. He then offered to take one of the women, but not both, to a service station.

At approximately 11:30 p.m. Adella left with Marek and Wigley. Jean Trach was suspicious of the men. "I had a very bad feeling. I didn't like this man," she said of Marek. "But I was terrified of the other man (Wigley) because he never moved." The men offered to take one of them to the next toll booth, so they could call for help. Trach didn't want to go with them and argued that Simmons shouldn't either. "She said, 'You've got to be able to trust somebody, sometime,"' Trach said. "She got in and they drove away. That was the last time I saw her alive. In retrospect, she saved my life. There were guns in the truck," she said.

At approximately 3:35 a.m. the following morning, a police officer patrolling Dania Beach noticed two men walking from the vicinity of a lifeguard shack towards a Ford pickup truck. He testified that he spoke to the men, who identified themselves as Marek and Wigley, for about forty minutes. He noted that Marek was the more dominant of the two; that Marek joked with the officer and interrupted Wigley every time Wigley attempted to speak; and that Marek drove the truck away from the beach when the conversation was completed.

Later that morning, the nude body of the 47-year-old victim was discovered on the observation deck of the lifeguard shack. According to medical testimony, Adella had been strangled between approximately 3:00 and 3:30 a.m., and was probably conscious for one minute after the ligature was applied to her neck. Her body was extensively bruised and her finger and pubic hairs had been burned. The medical examiner testified that he found sperm in Adella's cervix and believed she had had sexual intercourse after 11:30 p.m. on June 16. Bruises indicated that Adella had been kicked with a great deal of force. According to the examiner, some of Adella's injuries indicated she had been dragged up to the roof of the lifeguard shack and into the observation tower. Police issued a "be-on-the-lookout" bulletin to law enforcement agencies for Marek and Wigley.

On the evening of June 17, a Daytona Beach police officer, as a result of that bulletin, stopped Wigley, who was driving a truck on Daytona Beach, and found a small automatic pistol in the truck's glove compartment. Approximately one-half hour later in the same vicinity, police took Marek into custody. Adella's jewelry, including a gold watch, gold pendant and gold earring, was later found in the truck. A fingerprint expert testified that six prints lifted from the lifeguard shack matched Marek's fingerprints, and one matched Wigley's. Only Marek's print was found inside the observation deck, where the body was discovered.

Marek testified in his own behalf that he and Wigley had traveled together from Texas to Florida for a vacation; that he had attempted to fix Adella's disabled vehicle and had offered to take the women to a filling station; that he fell asleep after Adella got into the truck and that when he awoke, she was gone; that he went back to sleep and woke up at the beach, where he found Wigley on the observation deck of the lifeguard shack; and that it was dark in the shack and he did not see Adella's body. Marek admitted that after he had been incarcerated and a detective told him he had "made it to the big time," he responded: "S.O.B. must have told all."

Wigley testified that the victim was forced to perform oral sex and was sexually assaulted repeatedly. Simmons was then strangled with a bandana. Wigley was sentenced to life in prison and was killed in prison in 2000. Marek "deserves anything the country wants to give him," said Adella Simmons' friend, Jean Trach, who was with her that night. "She had no choice. She died a horrible death. They burned her, raped her, beat her up and strangled her."

John Marek's life history is a pathetic, heart-wrenching story of childhood trauma, abandonment and neglect. At the age of ten, he told a mental health evaluator, "He wants to change from being a boy who is sad all the time to being a boy who is happy all the time" (App. L, p. 6, previously filed, specifically and fully incorporated).

This sad little boy was born in Germany to an emotionally unstable mother who took large amounts of tranquilizers and diet pills during her pregnancy and to a largely absentee father, who spent great periods of time away from home serving in the military. At the age of eight or nine months, John overdosed to the point of convulsions when his older brother fed him some of his mother's medication.

Doctors said his mind would forever be affected by this overdose, and his childhood development of such skills as walking and talking was markedly slow. Labeled a "retard" throughout his childhood, John was rejected by his disappointed father and inadequately fed and clothed by his neglectful mother. Unable to speak intelligibly and suffering from constant enuresis, he was ridiculed by his peers. His parents divorced when he was seven years old. His mother remarried an alcoholic who spent the family money on liquor and who continued the rejection John had experienced since he was a baby. Despite the constant rejection, John was a loving child and tried again and again to seek affection, only to be rejected again and again. After a particularly violent family altercation, in which John came close to being shot by his stepfather, John's mother decided to give up her children. John's brothers went to live with their father, who refused to take John -- age 9, labeled a "retard", unable to speak.

Thus, at age nine, John Marek was placed in the custody of the Tarrant County, Texas, Child Welfare Unit, and began his trek through child welfare institutions, foster homes, and psychological evaluations. Incredibly, psychological testing done at that time revealed John was not retarded but of normal intelligence.

However, psychological reports indicated, John had not been able to develop normally because of cerebral dysfunction, deep feelings of inadequacy, and emotional deprivation. Over the ensuing years, psychological and child welfare reports continued to note John's emotional difficulties, his frustration and anger at his natural parents and stepfather, his learning disabilities resulting from psychological and neurological problems, his enuresis, and his feelings of inadequacy and rejection.

After passing through at least four foster families, at the age of 12, John was sent to a residential treatment facility, paid for by his father's insurance. John received various kinds of therapy and responded well, beginning to exhibit some emotional stability and academic progress.

However, when the insurance company terminated the funding for this placement, John was returned to his foster family, despite the treatment facility's pleas for continued funding, warnings that John's emotional and neurological disabilities required continued, intensive residential treatment, and prediction that removing John from residential treatment would destroy all the progress he had made.

After living briefly with his foster family, John was again placed in an institution, where psychological testing revealed that his previous progress had been lost. His scores on intellectual testing had plummeted, the result, evaluators noted, of organic brain damage and emotional disabilities. After about two years in this institution, John was again returned to his foster parents, who washed their hands of him four months later.

Following a brief stay in a shelter, John was placed in yet another foster family. He was then seventeen years old, and heavily involved in drug use. A few months later, John was convicted of credit card abuse and placed on probation. After John violated his probation, a competency evaluation noted his limited intellectual capacity, possibly resulting from brain dysfunction, and recommended drug treatment in a structured environment, stating that intervention could well reshape John's behavior.

No treatment was provided, and John was sentenced to serve two years in the Texas Department of Correction. After his release from prison, with nowhere to go, John resumed his drug and alcohol abuse. At age 21, he traveled to Florida with Raymond Wigley. Drinking heavily, the two were arrested for murder shortly after arriving in Florida.

Mr. Marek's capital sentencing jury did not hear any evidence regarding Mr. Marek's sad childhood, which had just barely concluded before he was charged with this offense. The only reason the jury heard none of this evidence is trial counsel's failure to investigate and prepare for the penalty phase. Had trial counsel conducted the appropriate investigation and discovered the readily available information summarized above, he would have presented that information at the penalty phase, as he testified at the state evidentiary hearing:

Q. If you had had Mr. Marek's mother willing to testify that she had abandoned her son and was sorry, is that something you would have wanted to present? A. I would have put her on the stand for sure. If she was willing to come here and testify to that, I would have put her on. * * *Q. If you had written documents to establish the history? A. Sure. Potential mitigating factors and there's no way it's going to come back to hurt me. Sure, want to put that on. Q. In this case, do you recall whether the jury had any background information presented to them on Mr. Marek? A. Just what they got in the guilt phase through his testimony. (PC-T. 395-96).

Defense counsel had a duty to independently investigate Mr. Marek's background and history in order to determine whether any mitigating evidence was available from that background. At the previous hearing, counsel testified that he made no effort to discover whether he could obtain records from Texas regarding Mr. Marek having been in custody of the state as a child (PC-T. 317), although he knew Mr. Marek had been in foster care (PC-T. 321-22), and had information that when Mr. Marek was a toddler, "his natural father left the family and his mother remarried, this time to an abusive alcoholic.

At age nine [Mr. Marek] was turned over to the State [of Texas] and lived in a variety of foster homes until striking out on his own at age 17" (App. H, previously filed, specifically and fully incorporated). Thus, counsel did not find court records from Texas which said Mr. Marek was declared "a dependent child based on neglect" (PC-T. 326). Counsel also made no effort to obtain Texas prison records (PC-T. 336) or court records (PC-T. 337), although he knew that Mr. Marek had been in prison in Texas (PC-T. 336), and had a print-out in his file which revealed

Mr. Marek's Texas inmate number (App. I, previously filed, specifically and fully incorporated). Counsel also made no effort to check out the address on Mr. Marek's Texas driver's license (PC-T. 320), although he had a copy of that license in his files (PC-T. 319; see also App. I, previously filed, specifically and fully incorporated).

Had counsel taken any one of these simple steps, the information detailed above would have flooded in. For example, records from the Texas Adult Probation Department contain a life history of Mr. Marek (App. F, previously filed, specifically and fully incorporated). This life history explains that Mr. Marek was placed in the custody of the Texas Department of Human Resources in October, 1970, and lists the names of the special schools Mr. Marek attended (Id., previously filed, specifically and fully incorporated). With this one document, defense counsel would have had enough specific information to unearth the 99 pages of documents contained in the files of the Texas Department of Human Services (see App. D, previously filed, specifically and fully incorporated).

Similarly, had defense counsel checked the address on Mr. Marek's driver's license, he would have discovered that the address was that of Sallie and Jack Hand (PC-T. 239), Mr. Marek's last foster parents (PC-T. 241), who lived at the same address at the time of Mr. Marek's trial (PC-T. 245). They were never contacted by defense counsel (PC-T. 244-45, 320, 322-33). Defense counsel testified he never "independently" checked out the address on Mr. Marek's drivers license and therefore he had "[n]o idea" whether that address would have led to Mr. Marek's foster parents (PC-T. 320). He further testified that he "[o]bviously" did not know what information the foster parents would have led him to because "I never talked to them" (PC-T. 323).

Having been foster parents themselves, the Hands of course could have directed defense counsel to the appropriate state agency for information regarding Mr. Marek.

Defense counsel's excuse for failing to take these simple steps was that he got the "impression" that Mr. Marek did not want defense counsel to go to Texas (PC-T. 333), although Mr. Marek did not refuse to cooperate with defense counsel: "he dealt with me as much as I wanted to. . . .[He was] there to answer my questions" (PC-T. 334). Trial counsel testified that he also had difficulty in getting Mr. Marek to understand what was at stake:
Q Did you specifically go through, say, any recognized nonstatutory mitigating factors in Florida and say this is what I'm looking for?
A I'm sure I said I'm looking for -- You see, when I was dealing with John I don't think he was -- he was very flat. He had no -- he had very little emotion about it. Not the case but our relationship. He was not -- He wouldn't get angry at me for the case not going well nor would he be happy if a motion was granted. It rolled right off him.

In that respect when I talked to John about it I didn't get the feeling that he was concerned. I couldn't get him to be concerned with it. I couldn't get him to be understanding of what I needed when I talked about psychiatric background. Did he have problems? He gave me the impression that he didn't want me to go to Texas and that may have been my impression but that was it.
(PC-T. 333).

Although Mr. Marek "wanted the end [of the trial] to be positive," he did not understand the process necessary to reach that end: "I don't think he saw the short-term goals. I don't think he saw each little task as having a good effect upon the whole thing" (PC-T. 335). Counsel was so concerned about his lack of rapport with Mr. Marek that he sought the assistance of a mental health expert: "I want[ed] the doctor to give me an idea psychologically what I was dealing with" (PC-T. 338).

Trial counsel further testified that investigation was not conducted in part because of a shortage of time and money:
Q Would it be fair to say that the reason that you didn't write to anybody in Texas is you didn't have the funds available for an investigator or to have an investigator go or can you explain that?
A In terms of, you know, why I didn't write someone in Texas because the impression I had I was not going to receive anything, you know, positive. I didn't have any avenues but certainly part of the reason is that this wasn't the only case I was handling at the time. You know. This was 1983. I imagine I had 70, 80 files and I usually carry one or two murder ones. That's been my practice.
(PC-T. 330-31). Counsel also testified that to investigate he "would have had to request the Court to appoint an investigator for a very oblique reason. I couldn't have given any real reason for it" (PC-T. 318).

The testimony at the state court hearing clearly established that trial counsel did not investigate Mr. Marek's background in preparation for the penalty phase. The Eleventh Circuit has explained the proper analysis of a penalty phase ineffective assistance of counsel claim:
In order to ascertain whether counsels' failure to present penalty phase mitigating evidence was deficient, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.... [If not], it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.

The duty to investigate is heightened, not limited, when a defendant is emotionally unable to assist trial counsel. In Blanco, it was explained that because Mr. Blanco "was noticeably morose and irrational" when defense counsel were attempting to prepare for the penalty phase, "[c]ounsel therefore had a greater obligation to investigate and analyze available mitigation evidence." Blanco, 943 F.2d at 1502.

Nor is the duty to investigate restricted by counsel's impressions that the defendant did not want counsel to pursue certain matters. "[T]rial counsel was [not] excused from investigating [Mr. Marek's] background because [Mr. Marek] allegedly instructed counsel that he did not want" such an investigation undertaken or such evidence presented. Eutzy v. Dugger, 746 F. Supp. 1492, 1499 (N.D.Fla. 1989). Trial counsel must investigate without regard to a defendant's instructions:

Eleventh Circuit case law rejects the notion that a lawyer may "blindly follow" the commands of the client. Thompson v. Wainwright, [citation] (defense counsel's failure to conduct any investigation of the petitioner's background allegedly out of deference to the client's wishes, fell outside the scope of reasonable professional assistance).

Although a client's wishes and directions may limit the scope of an attorney's investigation, they will not excuse a lawyers failure to conduct any investigation of a defendant's background for potential mitigating evidence. [citations] At a minimum, a lawyer must evaluate the potential avenues of investigation and then advise the client of their merit . . . Such neglect -- albeit because counsel expected a different result -- fell below an objective standard of reasonableness and, as a result, trial counsel's representation fell outside the range of competent assistance.
Eutzy, 746 F.Supp at 1499-1500 (emphasis added).

Blanco held that trial counsel who unquestioningly accepted instructions not to call penalty phase witnesses from a client who was "depressed and unresponsive," 943 F.2d at 1502, acted ineffectively and prejudiced his client, because "the ultimate decision that was reached not to call witnesses was not a result of investigation and evaluation." 943 F.2d at 1503. Rather, counsel was ineffective when "counsel essentially acquiesced in Blanco's defeatism without knowing what evidence Blanco was foregoing." 943 F.2d at 1501. Mr. Moldof's performance here was similarly deficient.

Mr. Moldof acknowledged that Mr. Marek was generally lethargic and apathetic. Regarding the investigation of background materials in Texas, Mr. Moldof had the "impression" that Mr. Marek did not want Mr. Moldof to go there. Under Blanco and Eutzy, this impression that the defendant did not want counsel to contact those with background information does not excuse the lack of investigation. As in Blanco, counsel's purported decision not to investigate was not reasonable. 943 F.2d at 1502.

Most recently, in Williams v. Taylor, the United States Supreme Court reversed the Fourth Circuit Court of Appeals' denial of an ineffective assistance of counsel claim. 529 U.S. 362 (2000). Specifically, the Supreme Court found that Williams' lawyer rendered prejudicially deficient performance by failing to conduct an investigation that would have uncovered extensive records describing Williams' childhood and failing to introduce the mitigation evidence that was available. Id. at 396. Trial counsel testified that he made a tactical decision to focus on his client's cooperation with the police, emphasizing his voluntary confession. The Supreme Court ruled "the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams' favor was not justified by a tactical decision to focus on Williams' voluntary confession." Id

The Supreme Court also made clear that a defendant's burden in postconviction is to prove that the mitigation "may alter the jury's selection of penalty," not to completely rebut the State's evidence in aggravation: "Mitigation evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death eligibility case." Id. at 398.

Similarly, in Mr. Marek's case, trial counsel's unsupported belief and Judge Kaplan's finding that the records describing Mr. Marek's childhood would have provided "negative aspects" was in error and constituted deficient performance. Trial counsel did not make a strategic decision not to present the records which would illustrate a tortured childhood characterized by neglect, abandonment and severe psychological and emotional problems, because as in Williams, counsel failed to obtain the crucial records. Clearly, due to the funding, counsel felt hamstrung and unreasonably failed to collect necessary documentary evidence which should have presented to the judge and jury that sentenced Mr. Marek to death.

Indeed, the neuropsychological testing not done at trial in order to save money has now been completed and confirms the indications of brain damage evident from Mr. Marek's history. This evidence established significant and compelling mitigation which trial counsel failed to develop and which the Rule 3.850 court did not consider.

Judge Kaplan previously ruled that trial counsel did not investigate, but that the decision not to investigate was reasonable: "I think Moldof indicated why he didn't investigate" (PC-T. 487). The circuit court also indicated trial counsel could have obtained the background and life history information presented by Mr. Marek in the post-conviction process: "he probably could have done some research on his own or asked for an investigator" (PC-T. 488). However, concluding that the history of severe abuse, neglect to the point of abandonment, and evidence of brain damage would make "any reasonable person[] want to make sure that Mr. Marek never ever walk the streets again" (PC-T. 488), the state court denied relief.

Trial counsel must conduct investigation before making any strategic decisions. Williams; Blanco; Middleton; Harris. "[I]gnorance about the type of mitigation evidence available . . . preclude[s defense counsel] from making strategic decisions on whether to introduce [such evidence]." Harris, 874 F.2d at 763.

Moreover, trial counsel attempted to introduce the mitigating evidence he did have available. Clearly, he would have used evidence regarding Mr. Marek's background if he had known about it. Counsel attempted to introduce the report of Dr. Krieger, but the trial court ruled it inadmissible.

Counsel also wanted the jury instructed on the no significant criminal history mitigating factor, but that instruction was denied. Again, that instruction would have opened the door to negative information regarding Mr. Marek's past, yet counsel requested the instruction.

Defense counsel testified that he would have presented the testimony of Mr. Marek's mother and documents regarding Mr. Marek's mental health and foster care history if such evidence had been available (PC-T. 395-96). Where defense counsel "conceded that he would have used the evidence had he known about it," one cannot "conclude that effective counsel would have made a strategic decision to forego [such] testimony." Harris, 874 F.2d at 764. "[T]hat trial counsel had no valid tactical reasoning behind his failure to perform a background investigation for possible mitigating evidence is supported by" trial counsel's testimony that "had he known of the records he would have presented them for mitigation." Middleton, 849 F.2d at 494.

Trial counsel did not investigate, attempted to present evidence which contained negative information, and testified he would have presented other evidence had he known about it. Thus, there is no tactical reason for failing to present that evidence. "[I]n light of the ready availability of this evidence and in the absence of a tactical justification for its exclusion, the failure by trial counsel to present [the mitigating evidence] fell outside the range of professionally competent assistance." Cunningham, 928 F.2d at 1018.

Had counsel performed reasonably, a wealth of compelling mitigation would have come forth in abundance. Literally from birth, Mr. Marek's life was one of abandonment, abuse, and neglect. This pathetic story emerges from voluminous foster care records, from Mr. Marek's natural parents who abandoned and neglected him, from foster parents who failed to provide the stability required by a psychologically and organically damaged child, and from numerous psychological evaluations beginning when Mr. Marek was only nine years old. All of this information is mitigating; none of it was presented to Mr. Marek's sentencing jury.

John Richard Marek was born September 16, 1961, to Margaret and Jesse William Grimm; years later, his name was changed from Grimm to Marek. Margaret and Jesse had been married in 1956. Jesse was a U.S. Army serviceman. Their first child, Mark William Grimm, was born in 1957; their second, J. Michael Grimm, in 1959 (PC-T. 79-80, 209-10). At the time of John's birth, Jesse was a sergeant and stationed in Germany. The pregnancy was a difficult one: "My body tried to abort him. And I had to spend a lot of time in bed" (PC-T. 79). Margaret was taking a considerable amount of medication at the time.

After John's birth, Margaret's emotional problems continued. "[She] was the type of mother that cared more for herself and her father and grandmother in the states than she did for the rest of the family" (PC-T. 210). She kept taking a plethora of medication, from a shoe box filled with birth control pills, darvon, valium, diet pills, and sleeping pills (PC-T. 107-08). When John was eight or nine months old, his older brother, J. Michael, got into the shoe box and fed pills to himself and John. When Margaret discovered this she did not know what to do:

I was afraid to tell their daddy and I was afraid not to. So finally I decided well I have to, you know. Even if he hurts me. I've got to tell him, you know, it happened.
Q Were you afraid he would hurt you if you told him?
A Yes. Because, see, I was supposed to be taking care of them and I didn't. So I called him and told him he had to come home. I had something to show him and tell him. And he come home and we took them in the ambulance to Frankfurt. Before we got there they started going into convulsions and by the time we got there, you know, they were more out than conscious. And they had to pump their stomachs. And they said if we hadn't got them when we did they would have died. Especially John would have died because he was littler and Michael had shared more with him than he had took himself.
Bill says that the doctor told us then that John's mind would be affected by it.
(PC-T. 108)(emphasis added).

Jesse vividly recalled the incident: I'd come in from the field. There wasn't anything around to eat, 8:30. It was during the winter months. It was dark. The children were all in bed. I'd been gone for 14, 15 days. I don't remember now. I was home for about an hour. Margaret was telling me about her mother and her grandmother and her father and this, that and the other and I was arguing. I was quite disciplined about taking care of -- Then she informed me that Jay Michael, the second son, had fed the baby, which was John, pills. Vitamin pills. Valium. Birth control. Diet eat pills. Whatever.
I immediately, as soon as she said pills, I immediately went in their room and grabbed them.

They were both in convulsions at the time. And rushed them to the dispensary. We were in an outlying area and it was not full medical facilities there. They pumped their stomachs. Both boys the same. You know. Two different areas but both at the same time, for about approximately an hour and then we transported them by ambulance to Frankfurt, Germany, which is a general hospital for the military services in Europe.

I stayed with them until the doctors came out of the emergency room and told me they would live but not to expect anything as far as the babies being able to cope with life. In other words, that he was brain dead. It was hard for them to learn anything. It would be hard for them to do anything and to expect the worse. Especially little John. Jay Michael, from what he had told me, Jay Michael did not take as many as the pills as he had fed John.
(PC-T. 211-12)(emphasis added).

Following this drug overdose there were obvious changes in John's behavior. Jesse explained the changes he noticed:

John could never sleep. At night he would cry. Walk the floors with him. He cried during the day. As he got older he was suppose to come to the age of where he could do things. He could never do them. He didn't start crawling until he was almost 18 months old. And he was well over two years old before he started to walking. Way over two years old.

His speech was never clear. It was a slurred speech. You had to listen real close. This is as he grew older until he started talking. He could never learn how to ride a tricycle, bicycle, normal like the other children. We'd have to work with him work with him, work with him to be able to get him to do something like this. Catch a ball. Throw a ball. He was even into his first years of school he was never able to do what the other children were doing at three or four years old.
Q Did you think he was retarded?
A Yes. I do. I did. I requested help for him through the military services, through the County social services. Through the school board.
Q Was he different than your other children?
A Yes, he was. Very, very different in every way. The normal kids playing in the yards and stuff, as children will do, John was never in the group playing. John was always off to the side doing something else or just watching.
(PC-T. 213-14)(emphasis added).

John was labeled retarded. His relationship with his parents suffered as a result. Jesse described Margaret's relationship with John:
Her relationship was like get out of here. Don't talk to me. I can't stand your talking. I can't stand your shrill voice. I can't stand this. I can't do that. Go sit down and shut up more than the other children.
(PC-T. 214).
Jesse blamed Margaret for John's condition. He also questioned whether he had fathered John. "[H]e couldn't accept that he could have a child that was like that" (PC-T. 92). Jesse treated John differently than the other children:

Mark was the oldest. Michael was the second one but Michael was bigger earlier so they were like twins sizewise and he would set up competition like between them. Mark, you are just a baby. Look here, Michael is doing this; climbing this tree already, you know, and things like that. He didn't do that with John. He was. He was disappointed that John was a special education child and mostly he just did nothing with John. Ignored him.

Q Do you know why or did John know why?
A John would ask me times why Daddy didn't play with him. Why Daddy didn't do anything with him. Why Daddy pushed him away. Yeah. John was aware of the attitudes. Yeah. A special education child or if you have to call him a retarded child is more tuned in on feelings than we are. They feel rejection even if the words are acceptance. And in a way I had rejected him too. I was so ho[n]ed in on wanting a girl and disappointed.... He wore pink as a baby because I was determined he was going to be a girl. I love John but I was neglectful [sic] of him because of my emotional state at the time.
(PC-T. 85)(emphasis added).

Jesse's military duties required him to be gone from home for long periods of time. He never spent a full year at home with the family. His trips lasted anywhere from one week to fifteen months. While in Europe he was away from home about ten months out of the year. When the family lived in Oklahoma in the mid-1960's, Jesse was away a lot serving in Viet Nam (PC-T. 217, 221). He frequently had concern that in his absences Margaret was neglecting the children. When he came home he found inadequate food and clothing (PC-T. 216-17). Margaret, however, felt that Jesse was neglectful of her and the children:

I wanted him to have time for our family but he didn't. I felt he chose the army over us every time. I was furious with him when he went the second time to Vietnam. (PC-T. 86). John's problems continued and grew worse, as Margaret explained: You never knew how he would react to things because he doesn't react the way I would have or the other boys would have. He saw things as sudden. He didn't understand cause and effect. He just knew he never could have a good time. Things always messed it up and he didn't understand why. The kids made fun of him. Didn't want to play with him because he had a speech impediment and they couldn't understand except if he didn't want to be understood and they understood every word he said.
* * *
A He always went to special education. He never went to regular school. He had a bladder problem. Clear up to - Well, actually when he went into foster care he still occasionally had accidents under stress.
* * *
A It wasn't like several times a day but it was frequent. It was almost daily. It was frequent. It was embarrassing to him. He'd say things like me spill water, you know. But he didn't. He didn't fabricate big stories like his brothers would to get out of being in trouble. He generally would say I did it even though he didn't do it. He didn't show much imagination. He showed a lot of love. He was precious when he was little.
Q You mentioned the word retarded. Did you ever have John tested?
A Yes, he was evaluated as trainable but not educable.
Q Was he ever made fun of for being retarded?
A Oh, yes. Yes. A lot.
(PC-T. 87-88)(emphasis added).

In 1968, Margaret and Jesse ended their marriage. Margaret kept the children, but Jesse had visitation. John was upset by the breakup. During Jesse's visitations, John was upset by Jesse's leaving (PC-T. 219). In 1970, Margaret remarried to Arlis Bagley, an alcoholic. He was "a functional illiterate" (PC-T. 93). Margaret explained:

I mean if he will take a check for a million he will write (sic) it. He hasn't a penny in the bank. I mean he will take the food money, the rent money, the utility money. He will take your last dime if you will loan it. He's going to drink one way or another.
Q Did that cause any problems for you with four still -- they were still small boys at that time?
A Yes, yes and they needed a father. And what they got was belittle meant [sic] and not wanting to be bothered. What they got was a hundred times worse than what their father had been but it took me years to see that.
Q How would Arlis treat John?
A John he treated the worse because John was the most forgiving of the four. The other three soon realized you don't try to hug Arlis. You don't try to. You stay away as much as you can from Arlis.
But John always tried again and again and be rejected again and again. He was a very loving child.
Q How would Arlis reject him, just by not hugging him or?
A No, he generally told him to get away, retard.
Q He would call him that?
A Oh, yes. I couldn't get him not to. He would make him go to bed if nothing else. He didn't want to be bothered with any of the children. He didn't want to have to provide for them. And he wanted the use of the support money that [Jesse] give us. But he didn't --
(PC-T. 93-94)(emphasis added).

During her marriage to Arlis, after the family had moved to Texas, an incident occurred which caused Margaret to give up her children:

I had had a job washing dishes there in a restaurant but I'd lost it because Arlis came in drunk there. Lost me the job.

His mother and her boy friend had been helping to feed us but then they left and I didn't have anything. So I went to Red Cross and because their father was in the military Red Cross helped us once. Then Arlis got mad that night because the car wouldn't start. And he took a handgun and fired it into the car. The bigger boys had run around to the back of the house but John started to walk between the car and Arlis and scared me to death and of course I went hysterical screaming at John to go round back and tried to get Arlis not to empty the gun into the car.
So I called [Jesse] and told him he's going to have to take the boys; that I couldn't handle the situation. Until I could figure out what to do. They were about to put us out of the house because we hasn't paid the rent. That day they had turned the electricity off. It was going into winter. He had no job.

Q You were living in?
A Fort Worth.
Q Northern Texas?
A Kind of out in the country. I was totally scared to death. I don't know what to do so I called [Jesse]. He said he'd take the three boys but he wouldn't take John.
Q Did he say why he wouldn't take John?
A Because John wasn't his.
Q Did he tell John that or did John know that?
A Arlis told John. John - the welfare people came and got John before [Jesse] came for the boys. [Jesse] came to the house and I gave him their clothes and everything and it was supposed to be a temporary thing. But it became a life changing decision. They never were back in my custody ever again. I visited singularly but never as a family. We were never a family again.
Q How soon after the shooting incidents did child welfare come and get John?
A Next day.
Q Did he know why they were taking him?
A I think I explained to him I couldn't take care of him and that as soon as I could he'd come back. I don't remember for sure what I said.
Q But he knew that he wasn't going with his father?
A Yes.
Q And that the other boys were?
A Yeah. Yeah.
Q And Arlis told him something about that?
A Yeah.
Q What did Arlis tell him?
A That his Daddy wouldn't take him. That his Daddy didn't want him because he was retarded.
* * *
Q Ultimately who did you choose to stay with, your kids or with Arlis?
A Arlis and they felt that. They felt I chose Arlis over them. At the time I rationalized it and said the foster care is, you know, they're giving.
(PC-T. 97-100)(emphasis added). Subsequently, Margaret spent time in a sanitarium (PC-T. 102).

The Tarrant County Child Welfare Unit obtained custody of John on October 21, 1970. At that time John was adjudged a "dependent and neglected child." (App. K, p. 3, previously filed, specifically and fully incorporated). After being adjudicated a neglected child, John was placed in foster care with Lena and Virgil Cox. He was enrolled in Saginaw Elementary School on November 16, 1970. School records note that John was "put in foster home due to rejection by new stepfather." His teacher commented, "John is in need of a great deal of love and understanding. Needs to feel success and acceptance." App. K, p. 1. He was placed in a class for the emotionally disturbed. App. K, p. 6. On November 30, 1970, John was withdrawn from his new school when he was moved to a new foster home. App. K, p. 1.

In December 1970, when John was nine years old, a psychological evaluation, including the Wechsler intelligence scale for children, revealed that John was not retarded as everyone had believed. His verbal I.Q. was 91, performance I.Q. was 117, and full scale I.Q. was 104. The evaluation said that, while in foster care in Saginaw, John was in a class for the "minimally brain injured" and explained his speech difficulty:

John is a nine-year old boy of normal size and appearance. His most obvious disability is a severe speech and language handicap. His speech would be unintelligible to most listeners much of the time. And even an experienced examiner occasionally would have difficulty understanding his speech out of context.

His speech and language problem is characterized by severe articulation difficulties, frequent non-fluency, immature grammar and syntax, the use of gesture to aid self-expression, and occasionally the use of devices to get out of talking altogether (a shrug with a "don't know" response). At times when John is trying to say something, he becomes very non-fluent; when the listener tries to put together a sequence of incorrect sounds over a prolonged period of time, comprehension becomes almost impossible.
* * *
This youngster had had a previous psychological evaluation which suggested he was of borderline potential intellectually. It is easy to understand how this estimate of John's ability might have been obtained.

John seems to be a sensitive child who is acutely aware of feelings and perhaps expectation of others toward him -- it may be that he responds in his "borderline" manner when he thinks this is how the significant person with him feels about him.
App. L, pp. 2-3 (emphasis added).

John was placed in a good foster home and a small private school for children with learning disabilities. He made very good progress in learning to speak intelligibly. However, John was removed from the placement because of the foster mother's ill health. He was placed with new foster parents who enrolled him in public school where he attended a special class for children with cerebral dysfunction. App. D, p. 16, previously filed, specifically and fully incorporated. An evaluation conducted on November 12, 1971, contained the following:

John produces an unusually long Rorschach in comparison to most youngsters of his mental age. The length is partly a function of many detail responses, which may suggest a need to select limited aspects of an environment to achieve a sense of stability in almost a compulsive manner.
Edged and tiny detail are also characteristic of protocols of children with cerebral dysfunction. There are many elements of this Rorschach which suggest organicity. First of all, John is a "slow starter." He begins with extremely poor perceptions, but as he moves along, he gradually begins to get the idea, and by the last few cards he is doing a rather good job in responding. This sort of approach is often typical of MBI children.

John's protocol contains many other "organic indicators". He displays excessive perseveration ("Butterfly" is the first response for five straight cards!) He is hung up on lines and symmetry. He does some color naming, and as mentioned previously he shows a large number of detail responses with a tendency to tiny and edged detail.
* * *
John seems to have a deep sense of inadequacy and poor self concept. The boy has "one leg broken off" and the butterfly has "only bones, no wings". This seems to be an oversensitive and easily hurt youngster who tries to hide his sensitivity. John seems to be anxious and may see himself in a tenuous situation with possible repercussions. Thus the boy is pictured as "sitting on a cannon", and the cloud is "blowing air and getting everything around it all hot and bothered".
* * *
John's story telling involves a little boy who likes to play cards and got involved in sports, such as bowling, football and basketball. He also likes to play with army men, and sometimes at night when his light is supposed to be off, he stays up and plays with his army men in a "little bit of light." He doesn't like it because other kids call him squirt, and he is worried about his daddy who is over in Vietnam. He is unhappy when he has no one to play with. He wants to change from being a boy who is sad all the time to being a boy who is happy all the time. For his three wishes he chooses army men, a bicycle mirror and turn signals for his bike. He wants to grow up to be a policeman.

When the story was finished, John grinned in a somewhat poignant manner and said, "Did you know the little boy in the story was me?" He then told of a recent very happy experience. He had spent the night at another little boy's house, and they had stayed up late and watched an Elvis Presley movie.

SUMMARY

John has previously been diagnosed as a youngster with cerebral dysfunction, and the Rorschach would certainly seem to confirm this diagnosis. John's protocol actually suggests somewhat better ego strengths then would be predicted on the basis of history, and intelligence not markedly reduced, but rather erratic and disorganized, probably on a basis of organicity. There is no suggestion of psychopathology. Rather this seems to be an immature youngster with rather basic defenses who is probably making some sort of neurotic adjustment to his very real problems. Psychotherapy might be of help, but there are certainly many reality problems confronting this youngster.
App. L, pp. 5-6, previously filed, specifically and fully incorporated.

A psychiatric evaluation was conducted on November 17, 1971, by Dr. Henry Burks. It concluded:
Grossly, his mental processes seem intact except for the difficulty in relating and the affective disturbances. I would consider him as an emotionally deprived boy with minimal cerebral dysfunction syndrome and language disability who is having some situational reaction to a difficult foster and school placement. He is currently taking Dexedrine, 5 mg. twice a day, and I added Mellaril, 10 mg. three times a day to this program to see if it could help his anxiety level. I think this boy is probably in need of supportive psychotherapy or casework services, but I don't know where they are available.
App. L, p. 7 (emphasis added).

John saw a psychiatrist on a regular basis. Progress notes reflected the persistence of John's emotional difficulties arising from his abandonment by his parents. These notes also reflect John's placement with foster parents from whom he took the name "Marek." During this time period, John was prescribed Dexadrine, Mellaril, and Elavil. See App. L., pp. 12-28. These notes provide a very revealing portrait of John:

3-27-72: This was a joint interview with Mrs. Marek. John's foster mother, and Mr. Purnell, John's welfare worker. They wanted to know about John's progress and the prognosis. I told them it was my feeling that because of John being traumatized so much that it would be expected that he would continue having problems for years to come. Mr. Purnell mentioned that he had gotten a letter from John's father who is in Europe and that the father indicated in the letter that he is interested in John and hearing about him, but he definitely doesn't feel in the capacity to provide a home for him. Mrs. Marek indicated that she is not planning to adopt John but she is willing to continue having him, but she cannot promise that she will keep him until he is over his childhood and adolescence. She is just going to play it by ear.

4-10-72: Today we had the session with John in the playroom. Immediately after entering, he started kicking the ball very hard repeatedly. I told him that it appeared to me he was quite angry. At first he denied it, then he said he was still angry at his step-father, Mr. Begley, for whipping him each time he wet the bed, which was something that he could not help and could not stop doing it. Then I saw Mrs. Marek jointly with John and she indicated that last week he had gone to the house where he used to live with his natural parents. After that, during the rest of the week, his behavior was not good. He wet the bed every night and this seems to irritate his foster parents.

4-19-72: John told me today that he feels his foster mother and his foster sister are keeping a secret from him, which is that his natural mother is not taking him back. He indicated that he was supposed to be away from his natural mother for one year and then after that be returned to her. He has ambivalent feelings towards his natural mother.

6-9-72: John is a child who has been seen by Dr. Serrano. He has evidences of deprivation, the foster child syndrome, and learning disability which is probably on both psychological and neurological basis. He had been improving greatly through his psychotherapy. When Dr. Serrano left, however, there was a fairly massive regression, some self-destructive behavior, and a return of the enuresis.

2-28-74: First I interviewed Mrs. Marek and she said that during the past week John was gone on Saturday for 8 hours. He has continued wetting his pants, and he also had an episode of soiling. Mrs. Marek expressed the opinion that John needs more structure than she is able to provide, more so now when she is running for office, and I agree that John needs more structure than he is getting right now. She is considering the Adventure Trails of the Salesmanship Club in Dallas, and St. Joseph's School of the Catholic Charities a possible placement possibilities, and I also gave her the name and address of Shadybrook School in Richardson as another possibility. She is going to check on them and see what kind of placement she can come up with. Champus Insurance will cover 80% and the rest will be paid by the Welfare Department.
App. L, pp. 15-28 (emphasis added).

Another psychological evaluation of John was conducted in April of 1974:
John's story telling suggests that here is another foster child still fantasizing about and idealizing his natural parents years after he has left the natural home. The boy in the story is afraid of his stepfather who is always hitting him and wishes he were dead. He hates his mother and stepfather, so he goes to the Child Study Center and talks to the psychiatrist who sees that mother and step-father are divorced and mother remarries natural father. Then mother stops "all that marrying and divorcing", and the family lives happily ever after. (A rather large order for the psychiatrist!)

John's written expression is so poor that his Sentence Completion test is of little value. Two stories are perhaps of significance on the Tasks for Emotional Development Test. In one John's present foster parents come through as helpful, fair and concerned. In another the boy sees himself as ugly looking and rejected by his peers and lacking in abilities and confidence. Also there are suggestions John is still having difficulty getting along with his present foster sister.
App. L, pp. 10-11 (emphasis added).

In the spring of 1974, Mrs. Marek decided to remove John from her home and sent him to a residential treatment facility. Funding for this move came from Jesse Grimm's Champus Insurance obtained through the military. John arrived at Shady Brook Residential Treatment Center for Children in Richardson, Texas, on June 11, 1974. App. B, previously filed, specifically and fully incorporated. In August 1974, an Academic Progress Report on John's initial adjustment at Shady Brook noted that John "appears to lack assertiveness in some peer interactions which results in his being bullied by the more aggressive group members." App. C, p. 4, previously filed, specifically and fully incorporated.

It also explained, "John's weak ego seems to cause him to withdraw when there is any conflict, either with other students or with the teacher." Id. A March, 1975, report noted that John had shown much improvement, although his bed wetting continued. App. C. On the Stanford Achievement Test administered in April, 1975, John's scores were in the 5.2 to 6.1 grade equivalent levels. This was shortly before John's fourteenth birthday when he should have been near the end of an eighth grade level. In June of 1975, intelligence testing revealed a verbal score of 87, a performance score of 103 and a full scale score of 94. App. B.

In September, 1975, Champus said funding would soon be terminated for John's placement in Shady Brook. The medical director wrote Congressman Jim Wright protesting the funding cut:
To review you briefly, John is the son of a retired serviceman. The family abandoned John a number of years ago for all practical purposes. He was in the custody of Tarrant County Welfare before being placed in two different foster homes. John had reacted to neglect and abandonment primarily by an autistic-like withdrawal into himself and by lack of speech development. Mrs. Marek became interested in him and took him into her home in late 1971. She sought help for him on an outpatient basis through the Child Study Center in Fort Worth, and struggled to keep him functioning in their home and in the community. The boy's emotional problems prevented her being able to do that.

We admitted John to Shady Brook June 11, 1974, and immediately placed him in individual therapy with Joseph Kugler, M. D. He has had remedial education, speech therapy, individual psychotherapy and group therapy. John's response has been good. School achievement is still approximately two years behind appropriate grade placement. We have seen him relinquish his introverted amateur adjustment in favor of periods of emotional stability, academic achievement, and outgoing peer relations. Psychological factors are difficult to describe in a concrete way and I will not go further in that direction.

The gist of the matter with John is that he has made improvement but if he is discharged at this time it is unlikely that the Mareks or any other family can sustain him within their group. There is no educational facility in Fort Worth equipped to work with him. He continues to wet the bed almost nightly. He gravitates toward delinquent behavior as he is suggestible, immature and impulsive. It is our judgment that a considerable effort has been made by the Marek family, by the community agencies in Fort Worth, and by us as a residential treatment facility. To stop now will negate what has gone before.
App. C, p. 27 (emphasis added).

The medical director also wrote Dr. Dane Prugh for help preventing the cutback on Champus funding, and acknowledged that there was a tendency at Shady Brook to under diagnoses:
I have wondered whether we have hurt our position by a tendency to "under diagnose". I am sure that you can appreciate our often not wanting to label a seriously disorganized child from a chaotic home situation as psychotic, even though at times under stress he functions at a psychotic level. Even though it hurts our presentation of the case now, I have always felt that such labeling hurts the child even more and particularly those whom we feel have a good prognosis. Does your committee take this viewpoint into account?
App. C, p. 30.

Champus refused to extend funding. Shady Brook's director of admissions wrote Mrs. Marek and described how John was taking the news of the funding cutback:
Dr. Kugler saw John for the last time on Thursday morning, October 2nd. He chose to do this at his own expense as he felt it was something he wanted to do. I had explained the financial situation which would prevail after September 30th and told Dr. Kugler that we would be unable to continue the individual therapy sessions. It was a tearful parting for both of them. I spent some time with John later in the morning trying to simplify as best I could the arbitrary CHAMPUS decision. One of the boys in John's dormitory had already left earlier in September because of a termination of CHAMPUS, so that part was not new to him.
App. C, p. 34. On October 28, 1975, the program director of the Tarrant County Child Welfare Unit wrote Champus making a last ditch appeal for a continuation of the funding for John:
This is a formal request from this agency that the decision to terminate the CHAMPUS cost-sharing benefits to John R. Grimm be reconsidered. John has been in residential care at Shady Brook School in Richardson, Texas since June 11, 1974. As you are aware, John Grimm has been in the custody of the Tarrant County Child Welfare Unit of the Texas State Department of Public Welfare since October 21, 1970.

This agency and other community resources have made all possible efforts to address the emotional problems of the child evidenced in such symptoms as enuresis, encoprisis, fire-setting, a handicapped speech, intraversion and acting-out behavior. He further has had educational difficulties resulting from minimal cerebral dysfunction syndrome.

John was placed in the licensed foster home of Mr. and Mrs. Gabriel Marek on August 21, 1971. Mr. and Mrs. Marek have responded to John's needs and demands with more patience, understanding, love and concern than many children receive from natural parents. The Mareks have certainly done more for John than any foster parent would ever be asked to do.

Prior to placement at Shady Brook, John was receiving out-patient therapy and attending special classes with children who have cerebral dysfunction. However, these resources were not sufficient to enable John to live successfully in the community. Jose N. Serrano, M.D. recommended John be placed at Shady Brook. (Dr. Serrano was John's psychiatrist at the Child Study Center.)

This agency has been very pleased with the care which John has received at Shady Brook. In the milieu program of remedial education, speech therapy, individual psychotherapy and group psychotherapy, John has made substantial progress in his peer relations, speech and educational achievements and has exhibited a higher level of emotional stability and maturity. However, it is the opinion of treatment staff that John has not yet reached a level where he could be sustained in a foster family or sufficiently assisted by existing educational facilities in the community.

As Dr. Jack Martin Medical Director of Shady Brook, notes: "He continues to wet the bed almost nightly. He gravitates toward delinquent behavior as he is suggestible, immature and impulsive." Additionally, the Mareks also do not see John as yet ready to return to their home. It is projected that John will require an additional nine to twelve months of residential treatment before he can successfully reenter the community.

Because of their desire to see John's treatment continued, the staff at Shady Brook have allowed him to remain while they receive only the $300 per month supplied by Tarrant County. (This is the limit that the county will pay.) However, this arrangement cannot continue beyond the end of the year. A great deal of effort from many sources has gone into the progress made thus far by this child. To stop the treatment now could negate the progress and drastically diminish this child's chances to be an emotionally stable and productive member of the community.
App. C, pp. 38-39.

In December 1975, Shady Brook issued its last progress report on John:
In the dormitory, John has made gains in some areas, with considerable difficulty remaining in others. He shows increasing willingness to deal with his problems in a realistic manner, seeming to be able now to correlate his own actions to the consequences that follow. This is contrasted with earlier attitudes that unpleasant consequences were forced upon him unfairly by elements beyond his control. Behavioral outbursts occur less frequently, as John is slowly learning to replace external forms of discipline with self-control.

Peer relationships remain more difficult than adult relationships. He has not been able to form a close friendship in the dormitory, although dorm acceptance of him is increasing. His immature responses to the others have diminished to some degree, as have their complaints of him. John relates well to the staff, with dependency expressions being most frequent. John's bed wetting has increased since the summer.
App. C, p. 41.

On January 23, 1976, John left Shady Brook. App. B. After he lived briefly with the Mareks and took their name in April of 1976 (App. D), although they never actually adopted him, John was placed with the Devereux Foundation in Victoria, Texas. He was enrolled in June of 1976 under the name John Marek. An admissions psychological evaluation revealed that much of the progress made at Shady Brook was already gone:

The intellectual picture requires some explanation. A Full Scale Wechsler Bellevue I.Q. of 82 was obtained placing the patient in the Dull Normal range of intelligence. The Verbal I.Q. was 64 and the Performance I.Q. was 104. Subtest scores ranged from a low of 1 on Arithmetic to a high of 12 on Picture Completion and Block Design. This young man at some time in the past was potentially capable of functioning in the Bright Normal range. His longstanding emotional disturbance has significantly lowered his overall intellectual functioning, but his basic cognitive grasp remains average.
* * *
A fairly complicated picture with the chief diagnostic impression being ego diffusion/ fragility with moderately severe general emotional disturbance. Emotional integration is poor with inability to form goals, frequent outbursts of impulsivity and, perhaps most important, thinking disorganization. At least borderline or latent thinking disturbance is seen as present. In fact, the common denominator behind much of the patient's fairly self-defeating behavior is seen as a thought disturbance.

Currently this is not crystallized, and the next several years will determine future levels of adjustment. Level of depression is only mild with the level of anxiety being only mild as well. This young man's inability to form goals reflects his vacuous view of himself in the world. There is a fluid, changing, fragmented quality to this young man.
App. A, pp. 29-30, previously filed, specifically and fully incorporated.

An evaluation conducted at Devereux on October 19, 1977, was very insightful: A Full Scale Weschler Bellevue I.Q. of 80 was obtained, placing the patient in the Dull Normal range of intelligence. However, this figure must be interpreted with caution because of the wide verbal performance discrepancy. Verbal I.Q. was 67; Performance I.Q. was 99. The overall profile is similar to one obtained in 1976, when John entered Devereux. At some time in the past this young man was potentially capable of functioning in the Bright Normal range of intelligence, but due to his various problems have been unable to realize this potential.

The tests strongly suggest underlying organicity, reflected in a language/learning disability syndrome. Academic information is very poor, and general verbal skills are also poor. Perceptual motor dysfunction is indicated. However, in terms of specific etiological contributors, organicity must rate a second place to this young man's severe emotional disturbance.
* * *
This young man shows many indications of developing an inadequate personality disturbance. That is, he is increasingly seeing himself as an inadequate person, partially due to his bed wetting, but chiefly due to the lack of any kind of positive male identification. Increasingly, he sees himself as a bummer, a fool, a dummy, etc. This does not constitute a step backward, but more accurately a clarification in diagnoses.

This young man had all of these features when he entered Devereux, but they have become more clearly evident diagnostically during the time he has been at Devereux. Accompanying his inadequacy feelings and the overall inadequacy constellation are a variable morass of underlying depressive feelings. While John is only mildly depressed, his depression extends very far back in time and is fairly well and deeply set.
App. A, pp. 17-18.

In May 1978, John still had a bed wetting problem which caused him much embarrassment. "[H]e continue[d] to feel so worthless -- feeling that he [was] a nothing." The Devereux staff felt John needed to "find something he can do and find successes and gain more self-confidence to strengthen his feeling of self-worth." App. A, p. 11. John was discharged from Devereux at his request on September 18, 1978.

The discharge summary noted "John's feelings of inadequacy among peers and a feeling he would like to return to a Unit where there were younger and smaller children." App. A, p. 5. John went to the Marek's where he attended public school and worked at a gas station. In October 1978, Mrs. Marek reported John had "regressed in his enuresis problem after his birthday because his natural father had not called or sent a present to John as he was supposed to. Since his birthday, John ha[d] resumed his bed wetting." App. D.

In December, John quit school. In January, the Mareks washed their hands of John. Texas Welfare officials placed John in a shelter. He wanted Jesse Grimm's phone number which the welfare officials obtained from Margaret Begley. App. D, Summary of Movement from 01/01/79 to 09/28/79. In March of 1979 he was placed with new foster parents, Sallie and Jack Hand (PC-T. 239).

In May, 1979, John was charged with credit card abuse for attempting to charge $55 on a credit card a customer had left at the gas station where he worked. App. F, pp. 6, 9, previously filed, specifically and fully incorporated. John was placed on probation. App. G, p. 3, previously filed, specifically and fully incorporated. In 1980, probation was revoked because John had failed to attend a counseling and vocational program, and John was sentenced to two years in state prison. App. G, p. 4.

During probation revocation proceedings, a competency evaluation noted that John had developed a substantial drug abuse problem, mainlining heroin and using marijuana, cocaine, speed, and downers, but that John had functioned adequately in jail where drugs were not available. App. E, p. 5, previously filed, specifically and fully incorporated. The evaluator recommended that John receive drug treatment in "a strictly enforced and structured environment," which could "reshape [his] behavior permanently." Id. at 6.

After his release from prison, John had nowhere to go and resumed using drugs and drinking. By the time of the offense, he was consuming vast quantities of alcohol. He drank approximately two cases of beer a day during the trip to Florida. When police officers stopped John and Raymond Wigley on the beach early on June 17, 1983, the bed of Wigley's truck contained eight to ten cases of beer. When John and Wigley were arrested the next day, there were five or six cases of beer in the truck.

This evidence concerning Mr. Marek's character and background never reached Mr. Marek's sentencing jury and judge. Mr. Marek's early life of abuse, neglect and rejection had a lasting impact on John. These were facts the jury should have known about John Marek. Since defense counsel failed to present this important information, Mr. Marek was sentenced to death by a judge and jury who knew virtually nothing about him save what the State told them.

Under Florida law, the background information that counsel did not pursue was admissible as evidence of mitigating circumstances. The Florida Supreme Court has recognized that the kinds of information available through investigation of Mr. Marek's background is mitigating. For example, a deprived and abusive childhood is mitigating. Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990)("Abused or deprived childhood" is valid mitigating circumstance); Holsworth v. State, 522 So. 2d 348 (Fla. 1988)("Childhood trauma has been recognized as a mitigating factor").

The background information described above was not only independently mitigating, but also would have prompted a thorough neuropsychological evaluation of Mr. Marek. Such an evaluation would have confirmed what the Texas records indicate: Mr. Marek suffers from organic brain damage and severe psychological disturbances, and has suffered from these conditions throughout his life. Such an evaluation would also have revealed that Mr. Marek's organic brain damage and psychological disturbances interacted with alcohol and drug abuse and with intoxication at the time of the offense to substantially impair Mr. Marek's judgment and ability to control his conduct.

Dr. Krieger, who evaluated Mr. Marek pre-trial for competency, testified at the previous hearing that he was not asked to evaluate for mitigation (PC-T. 282), that he was concerned about saving taxpayer money and obtaining future court appointments, and that he is not a neuropsychologist and was not qualified to perform neuropsychological testing (PC-T. 283). Had he been provided with records indicating a history of organicity, Dr. Krieger would have referred defense counsel to someone qualified to conduct such testing (PC-T. 283).

Dr. Pat Fleming has now conducted the necessary evaluation and testing. Her report demonstrates substantial mitigation that could have been provided to Mr. Marek's sentencers:

SUMMARY OF NEUROLOGICAL IMPLICATIONS

These test results indicate cerebral dysfunction with the left hemisphere affected more than the right. Given John's history of head injury, high fevers, and drug overdose it is likely that these previous injuries interacted with the considerable psychological problems to result in significant problems. John was not able to converse until nine years of age. He also had the accompanying behaviors that would indicate significant damage to the frontal and/or temporal lobe. All of these behaviors were well documented in psychological lay reports: lack of capacity for self-control (restlessness, impatience, and impulsivity), impaired social behavior (impaired judgment, social dependency), impaired ability to learn (six grade levels below age), and emotional problems (irritability, liability of mood). Language and cognitive fluency has increased through the years but the emotional components of the brain damage have remained.

DIAGNOSTIC IMPRESSIONS

John Marek's history is consistent from all sources: school and medical records, collateral information, self report, behavioral observations, prior psychiatric and psychological evaluations, and test data. His early years were traumatic psychologically; a natural father who denied his paternity and disassociated himself from his son's problems, a mother who was depressed, immature, and who relinquished her son at eight years because of his problems; an alcoholic step-father who physically and emotionally abused him; a foster father who was not emotionally available and also hit John, a foster mother who focused on his deficits, was not emotionally available, and provided inconsistent control and nurturing and who ultimately abandoned him after refusing him therapeutic help.

The brain injury added to the psychic trauma. The significantly delayed speech, encopresis, hyperactivity, and inability to follow directions only added to the psychological problems. The too infrequent therapeutic intervention was not sufficient. As recently as 1980, the examining psychiatrist recommended treatment rather than incarceration.

The significant alcohol use only added to the poor judgment stemming from brain damage and serious psychological problems. The previous history of alcohol blackouts indicate that John was consuming heavy amounts of alcohol on a continuing basis and the day of the offense he had consumed four cases of beer.

John has a history of lack of self-respect and worth. He described himself as a youngster as "a nothing" and accepted the fact of his parent's abandonment as right and just, given his inadequacy. Most children grow up with a sense of personal power, but not John. He was regarded as almost invisible during most of his childhood -- "my mother was there but she wasn't there." He finally reached adulthood with no knowledge of his value but knew that he was unable to influence the course of his life. He lacked the psychological resources to move away from people or circumstances that would cause him pain and grief. When the events were beyond his control he finally lost the ultimate control.

Rutter, Graham, & Yle, 1970, note the prevalence of emotional disturbance among non-brain-damaged, nonphysically ill, or handicapped children to be 6.6%. Brian damaged children, however, showed a rate of emotional disturbance of 34.3%, almost six times the normal occurrence rate. Filskov and Boll, 1981, state that children with brain damage are certainly at an increased risk for emotional disturbance.

John's symptomology meets the criteria of Organic Brain Syndrome as outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-III): Affective instability e.g. marked shifts from normal mood to depression, irritability, or anxiety; recurrent outbursts of aggression or rage that are grossly out of proportion to any precipitating psychological stressors; markedly impaired social judgment; marked apathy and indifference.

John was diagnosed as a child as having an underlying depression. The current evaluation supports the diagnosis of Dysthmia (Depressive Neurosis). According to the DSM-III the essential feature is a chronic disturbance of mood involving depressed mood (irritable mood in children) for at least two years. During these periods of depressed mood there are some of the following associated symptoms that John has demonstrated: poor appetite, hypersomnia, low energy or fatigue, low self-esteem, poor concentration or difficulty making decisions, and feelings of hopelessness. John's present level of depression is heightened by his present circumstances but the history indicates that the depression is long standing.

John's history clearly documents the trauma and brain damage. Unfortunately, previous examiners did not have sufficient data available to them to make diagnoses which require case history and documentation to validate. John's information is consistent and I believe the other examiners would have drawn different conclusions based on the psychological evidence and background information.

MITIGATING CIRCUMSTANCES

1. Significant physical and psychological trauma during infancy and childhood... drug overdose, head injuries, seizure activity, and recurrent high fevers.
2. Consistent diagnosis of brain dysfunction beginning at one year. Treatment plans were inconsistent and interrupted.
3. Alcohol use beginning at age eleven and increasing at age seventeen. This excessive alcohol use interacted with the existing brain dysfunction and severe psychological problems to significantly interfere with functioning and judgment.
4. Significant family pathology. Abandoned by natural mother, father, step-father and foster family. Unaccepted at home and school due to his behavior and severe language delay.
5. Consistent lack of opportunity to establish stable relationships. Frequent shifts in foster families and treatment centers, with no consistent plan. Failure to refer to in-patient treatment when the circumstances and recommendations warranted more intense treatment.

John Marek is a classic example of a child who was provided too little, too late. From the time of his birth he was a frantic child, seeking acceptance, nurturing, and attention. He was surrounded by inadequate people who did not have the capacity to understand or rear a child who had significant problems.

Compelling evidence regarding John Marek's brain damage never reached the sentencers because defense counsel failed to obtain the background records indicating that neuropsychological testing was necessary. Had he done so, as Dr. Krieger testified, the testing would have been conducted and as Dr. Fleming's report demonstrates, would have revealed Mr. Marek's organic brain damage.

As Dr. Fleming's report also demonstrates, a thorough psychological evaluation which took into account the documentation regarding Mr. Marek's background and history would also have provided substantial mitigation regarding Mr. Marek's mental and emotional disturbances, his history of alcohol and drug abuse, and his intoxication at the time of the offense. Such evidence, too, is recognized mitigation. See Castro v. State, 547 So. 2d 111, 116 (Fla. 1989)(evidence that defendant was drinking at time of offense and had "alcohol and drug addicted personality" was mitigating).

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

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22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.

59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.

60. Glen Ocha, 47, was execited by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.

Defendant was convicted in the Circuit Court, Broward County, Stanton S. Kaplan, J., of first-degree murder, kidnapping, attempted burglary with an assault, and two counts of battery, and he was sentenced to death. On appeal, the Supreme Court held that: (1) testimony regarding gun found in codefendant's glove compartment, though irrelevant, did not prejudice defendant; (2) evidence was sufficient to establish premeditation; (3) disparate sentencing accorded defendant and codefendant, latter of whom received sentence of life in prison, was warranted by defendant's dominant role in the criminal episode; and (4) death sentence was proportionately correct. Affirmed.

PER CURIAM.

The appellant, John Marek, appeals his convictions of first-degree murder, kidnapping, attempted burglary with an assault, and two counts of battery, and his death sentence imposed by the trial judge in accordance with the jury's sentence recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm all of appellant's convictions and his sentence of death.

This tragic incident began on June 16, 1983, when the victim and her female companion were returning home from a vacation. The victim's companion testified that when the car in which the two women were riding broke down on the Florida Turnpike near Jupiter, appellant, who was driving a pickup truck, pulled over; that appellant was talkative and friendly; that he unsuccessfully attempted to fix the car and then offered to take one of the women, but not both, to a service station; that at approximately 11:30 p.m. the victim left with appellant and Raymond Wigley, who was an occupant of the pickup truck; that Wigley had been present during a part of appellant's conversation with the two women but remained silent; and that, during the five days she and the victim were together on their vacation, the victim did not have sexual intercourse.

At approximately 3:35 a.m. the following morning, a police officer patrolling Dania Beach noticed two men walking from the vicinity of a lifeguard shack towards a Ford pickup truck. He testified that he spoke to the men, who identified themselves as Marek and Wigley, for about forty minutes. He noted that appellant was the more dominant of the two; that appellant joked with the officer and interrupted Wigley every time Wigley attempted to speak; and that appellant drove the truck away from the beach when the conversation was completed. Later that morning, the nude body of the 47-year-old victim was discovered on the observation deck of the lifeguard shack. According to medical testimony, the victim had been strangled between approximately 3:00 and 3:30 a.m., and was probably conscious for one minute after the ligature was applied to her neck. Her body was extensively bruised and her finger and pubic hairs had been burned. The medical examiner testified that he found sperm in the victim's cervix and believed she had had sexual intercourse after 11:30 p.m. on June 16. Bruises indicated that the victim had been kicked with a great deal of force. According to the examiner, some of the victim's injuries indicated she had been dragged up to the roof of the lifeguard shack and into the observation tower.

Police issued a “be-on-the-lookout” bulletin to law enforcement agencies for appellant and Wigley. On the evening of June 17, a Daytona Beach police officer, as a result of that bulletin, stopped Wigley, who was driving a truck on Daytona Beach, and found a small automatic pistol in the truck's glove compartment. Approximately one-half hour later in the same vicinity, police took appellant into custody. The victim's jewelry was later found in the truck.

A fingerprint expert testified that six prints lifted from the lifeguard shack matched appellant's fingerprints, and one matched Wigley's. Only appellant's print was found inside the observation deck, where the body was discovered.

The appellant testified in his own behalf that he and Wigley had traveled together from Texas to Florida for a vacation; that he had attempted to fix the victim's disabled vehicle and had offered to take the women to a filling station; that he fell asleep after the victim got into the truck and that when he awoke, she was gone; that he went back to sleep and woke up at the beach, where he found Wigley on the observation deck of the lifeguard shack; and that it was dark in the shack and he did not see the victim's body. Appellant admitted that after he had been incarcerated and a detective told him he had “made it to the big time,” he responded: “S.O.B. must have told all.”

The jury convicted appellant of first-degree murder, kidnapping with the intent to commit a sexual battery, attempted burglary, and two counts of battery. Consistent with the 10-2 jury recommendation, the trial judge imposed the death sentence. He found no mitigating circumstances and found the following four aggravating circumstances: (1) appellant was contemporaneously convicted of kidnapping, a felony involving the use or threat of violence; (2) appellant committed the murder while engaged in the commission of attempted burglary with intent to commit sexual battery and in the course thereof committed an assault; (3) appellant committed the murder for pecuniary gain; and (4) the murder was heinous, atrocious, and cruel. In a separate trial completed prior to Marek's trial, a jury convicted Wigley of first-degree murder, kidnapping, burglary, and sexual battery, and recommended the imposition of a life sentence for the murder. The trial judge sentenced Wigley to life in prison in accordance with the jury's recommendation.

Guilt Phase

Appellant challenges his convictions on three grounds. He first contends that his convictions should be vacated on the ground that the trial judge erred in refusing to grant appellant's motion for a mistrial raised when the policeman who arrested Wigley on Daytona Beach testified that he found a gun in the truck's glove compartment. Although the trial judge sustained defense counsel's objection as to relevance, he denied appellant's motion for mistrial, and instead instructed the jury as follows:

[T]here was indication by the witness that he found some type of a gun or firearm in this car and after discussion with counsel there is no evidence that I can see that would make that item relevant to this case, so at this point I would like you to do the best you can to forget it. In fact, I'll instruct you to forget that there was a firearm in that particular vehicle. It has no bearing on this case at this point and just disregard it.

Appellant argues that this instruction was insufficient on the ground that no nexus existed between appellant and the firearm. We find that the evidence of the gun's discovery was not prejudicial to appellant under the circumstances of this case. Further, a motion for mistrial is directed to the sound discretion of the trial court and should be granted only when it is necessary to ensure that the defendant receives a fair trial. See Ferguson v. State, 417 So.2d 639 (Fla.1982); Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). We find the trial court correctly denied the motion for mistrial and conclude that, in any event, the curative instruction given in this case was sufficient to dissipate any prejudicial effects of this testimony. See Jennings v. State, 453 So.2d 1109 (Fla.1984); Rivers v. State, 226 So.2d 337 (Fla.1969).

Appellant next argues that the trial judge erred in denying appellant's motion for judgment of acquittal founded on an asserted lack of evidence of premeditation or evidence to indicate that the killing took place during the commission of a felony. We find the record of appellant's trial is replete with evidence which justifies the conclusion that appellant committed premeditated murder.

In his third point, appellant contends that he was denied his right to a fair and impartial jury because the jury viewed a film entitled, “You, the Juror,” which, according to appellant, contained misstatements of law, introduced legal points when appellant's counsel was not present, and portrayed the criminal defendant in the film as a “seedy-looking” individual. We find the trial judge correctly denied the motion to disqualify the entire jury panel, and conclude that the general orientation film in question did not prejudice appellant.

Sentencing Phase

Appellant challenges his death sentence on four grounds. Appellant first contends that the trial judge erred in sentencing him to death in view of the fact that the judge had previously sentenced Wigley to life in prison for the same offense. This disparate sentencing, according to appellant, should be prohibited as cruel and unusual, arbitrary, and unequal. We reject this argument. In prior cases we have approved the imposition of the death sentence when the circumstances indicate that the defendant was the dominating force behind the homicide, even though the defendant's accomplice received a life sentence for participation in the same crime. See Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). The evidence in this case clearly established that appellant, not Wigley, was the dominant actor in this criminal episode. Both appellant and the victim's traveling companion testified that appellant talked to the two women for approximately forty-five minutes after he stopped, purportedly to aid them. During most of this conversation, Wigley remained in the truck. When Wigley got out of the truck to join appellant, he remained silent. Appellant, not Wigley, persuaded the victim to get in the truck with the two men. That evidence was reinforced by the testimony of three witnesses who came into contact with the appellant and Wigley on the beach at approximately the time of the murder, which indicated that appellant appeared to be the more dominant of the two men. Finally, only appellant's fingerprint was found inside the observation deck where the body was discovered. This evidence, in our view, justifies a conclusion that appellant was the dominant participant in this crime.

Appellant next challenges all four aggravating circumstances on which the trial judge based the death sentence. We find that none of appellant's challenges to the aggravating factors have merit. We also reject appellant's argument that because his conviction was predicated largely on circumstantial evidence, the nature of the evidence should be considered as a mitigating factor. See Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

Appellant next contends the jury should have been instructed that Wigley had received a life sentence recommendation in his trial, thereby eliminating the need for appellant to present this evidence to the jury which would allow the state an opportunity to present rebuttal evidence. We find this contention to be without merit. We previously discussed in this opinion disparate sentences for codefendants. Distinguishing the conduct of codefendants to justify different sentences is an appropriate issue in the penalty phase that is properly addressed through the development of evidentiary facts.

For the reasons expressed, we affirm the appellant's convictions and sentences, including the imposition of the death sentence.

It is so ordered. BOYD, C.J., and ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

Marek v. Dugger, 547 So.2d 109 (Fla. 1989) (State Habeas).

PER CURIAM.

John Richard Marek appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion to vacate judgment and sentence of death. He also petitions this Court for a writ of habeas corpus. We granted Marek a stay of execution from his first death warrant and ordered briefs on the issues. Marek v. Dugger, Nos. 73,175 & 73,278 (Fla. Nov. 8, 1988). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We now affirm the lower court's denial of Marek's motion and deny his petition for habeas corpus relief.

This is Marek's first postconviction relief proceeding. We affirmed Marek's conviction and sentence on direct appeal. Marek v. State, 492 So.2d 1055 (Fla.1986). The detailed facts surrounding the crime are set forth in that opinion.

Marek raised twenty-two points in his rule 3.850 petition, each of which was individually ruled upon by the trial court following a full evidentiary hearing. As to Marek's claim of counsel's ineffectiveness in his rule 3.850 petition, we find the dictates of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), were properly applied. The remaining claims were either raised or could have been raised previously and, thus, were properly denied on the basis of procedural default. We also find no basis for habeas corpus relief.

Accordingly, we affirm the trial court's denial of Marek's rule 3.850 motion and deny his petition for habeas corpus relief.

It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.

Defendant was convicted in the Circuit Court, Broward County, Stanton S. Kaplan, J., of first-degree murder, kidnapping, and other offenses, and he was sentenced to death. On appeal, the Florida Supreme Court, 492 So.2d 1055, affirmed. State petitions for postconviction relief, 547 So.2d 109, and habeas corpus, 626 So.2d 160, were denied. Petition for writ of habeas corpus was then filed. The United States District Court for the Southern District of Florida, No. 89-6824- CIV, Jose A. Gonzalez, Jr., J., denied relief. Petitioner appealed. The Court of Appeals, Dubina, Circuit Judge, held that: (1) attorney did not render ineffective assistance by failing to present evidence of petitioner's abusive and difficult childhood; (2) claims were procedurally defaulted; and (3) any error in instruction on kidnapping as aggravating circumstance was harmless. Affirmed.

DUBINA, Circuit Judge:

John Richard Marek (“Marek”), a Florida prison inmate convicted in 1984 of first-degree murder, kidnapping, attempted burglary with an assault, and two counts of battery, appeals the district court's judgment denying his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. After a thorough review of the record and briefs, and after hearing oral argument, we conclude that the district court correctly denied habeas relief and, accordingly, we affirm the judgment of the district court.

I. BACKGROUND

Following Marek's conviction and penalty phase proceeding, the jury recommended a sentence of death. After independent consideration of the facts of the case, the trial judge followed the recommendation of the jury and imposed a death sentence, finding four statutory aggravating circumstances and no mitigating circumstances applicable. Marek's convictions and sentence of death were affirmed on direct appeal. Marek v. State, 492 So.2d 1055 (Fla.1986), 626 So.2d 160 (Fla.1993) (habeas petition denied), cert. denied, 511 U.S. 1100, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994).

Marek sought post-conviction relief in state court by filing a motion to vacate judgment and sentence pursuant to Fla.R.Crim.P. 3.850, raising 22 claims for relief. The state trial court conducted an evidentiary hearing on Marek's motion for post-conviction relief. At the conclusion of the hearing, the trial court denied the motion and entered an order detailing its findings regarding the 22 claims for relief which Marek alleged. R.-Vol. XX, Exh. AA-5. Marek then filed a petition for a writ of habeas corpus with the Florida Supreme Court as well as an appeal from the trial court's denial of his Rule 3.850 motion. The Florida Supreme Court affirmed the denial of the Rule 3.850 petition and denied the petition for habeas corpus relief. Marek v. Dugger, 547 So.2d 109 (Fla.1989).

Marek then filed a petition for writ of habeas corpus in federal district court. Following a hearing, the district court denied Marek's petition. This appeal followed. After Marek perfected his appeal to our court, he filed a second petition for habeas corpus relief with the Florida Supreme Court. In this latter petition, Marek alleged numerous grounds for relief.FN1 Marek v. Singletary, 626 So.2d 160 (Fla.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994). The Florida Supreme Court denied Marek any relief, finding all issues, but one, procedurally barred. Id.

FN1. Specifically, Marek asserted that Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), and Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), constituted a change of law which permitted a post-conviction challenge to jury instructions; that the use of his contemporaneous kidnapping conviction as an aggravating factor was invalid; that the jury received a constitutionally inadequate instruction with regard to the heinous, atrocious, or cruel aggravating factor; that every felony would involve, by necessity, the finding of a statutory aggravating circumstance, a fact which, under the particulars of Florida's statute, violates the Eighth Amendment; and that the pecuniary gain aggravating factor was invalid.

II. FACTS

The Florida Supreme Court described the murder of Adella Simmons as follows: This tragic incident began on June 16, 1983, when the victim and her female companion were returning home from a vacation. The victim's companion testified that when the car in which the two women were riding broke down on the Florida Turnpike near Jupiter, appellant [Marek], who was driving a pickup truck, pulled over; that appellant was talkative and friendly; that he unsuccessfully attempted to fix the car and then offered to take one of the women, but not both, to a service station; that at approximately 11:30 p.m. the victim left with appellant and Raymond Wigley, who was an occupant of the pickup truck; that Wigley had been present during a part of appellant's conversation with the two women but remained silent; and that, during the five days she and the victim were together on their vacation, the victim did not have sexual intercourse.

At approximately 3:35 a.m. the following morning, a police officer patrolling Dania Beach noticed two men walking from the vicinity of a lifeguard shack towards a Ford pickup truck. He testified that he spoke to the men, who identified themselves as Marek and Wigley, for about forty minutes. He noted that appellant was the more dominant of the two; that appellant joked with the officer and interrupted Wigley every time Wigley attempted to speak; and that appellant drove the truck away from the beach when the conversation was completed. Later that morning, the nude body of the 47-year-old victim was discovered on the observation deck of the lifeguard shack. According to medical testimony, the victim had been strangled between approximately 3:00 and 3:30 a.m., and was probably conscious for one minute after the ligature was applied to her neck. Her body was extensively bruised and her finger and pubic hairs had been burned. The medical examiner testified that he found sperm in the victim's cervix and believed she had had sexual intercourse after 11:30 p.m. on June 16. Bruises indicated that the victim had been kicked with a great deal of force. According to the examiner, some of the victim's injuries indicated she had been dragged up to the roof of the lifeguard shack and into the observation tower.

Police issued a “be-on-the-lookout” bulletin to law enforcement agencies for appellant and Wigley. On the evening of June 17, a Daytona Beach police officer, as a result of that bulletin, stopped Wigley, who was driving a truck on Daytona Beach, and found a small automatic pistol in the truck's glove compartment. Approximately one-half hour later in the same vicinity, police took appellant into custody. The victim's jewelry was later found in the truck.

A fingerprint expert testified that six prints lifted from the lifeguard shack matched appellant's fingerprints, and one matched Wigley's. Only appellant's print was found inside the observation deck, where the body was discovered.

The appellant testified in his own behalf that he and Wigley had traveled together from Texas to Florida for a vacation; that he had attempted to fix the victim's disabled vehicle and had offered to take the women to a filling station; that he fell asleep after the victim got into the truck and that when he awoke, she was gone; that he went back to sleep and woke up at the beach, where he found Wigley on the observation deck of the lifeguard shack; and that it was dark in the shack and he did not see the victim's body. Appellant admitted that after he had been incarcerated and a detective told him he had “made it to the big time,” he responded: “S.O.B. must have told all.” Marek v. State, 492 So.2d at 1056-57.

III. ISSUES

Although Marek raised 22 claims in his federal habeas corpus petition, he only alleges five claims on appeal.FN2 We see no merit to Marek's claims regarding alleged ineffective assistance of appellate counsel and ineffective assistance of trial counsel for failing to provide the mental health expert with certain background information and, therefore, we summarily affirm the district court's judgment on these issues. We also affirm the judgment of the district court denying habeas relief on the remaining claims raised by Marek. We feel compelled, however, to address separately several issues raised by Marek in this appeal.

“In reviewing a petition filed under 28 U.S.C. § 2254, we presume that factual findings made by a state court are correct. We review factual conclusions made by the district court under the clearly erroneous standard. We review mixed questions of fact and law de novo. ” Hamilton v. Ford, 969 F.2d 1006, 1010 (11th Cir.1992) (citations and footnote omitted), cert. denied, 507 U.S. 1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993).

A. Ineffective Assistance of Counsel at the Penalty Phase

Marek alleges that he was denied the effective assistance of counsel at his penalty phase because his counsel failed to present compelling mitigation evidence which may have produced a different outcome-i.e., a sentence of life imprisonment. “Ineffectiveness of representation is a mixed question of law and fact subject to de novo review.” Bolender v. Singletary, 16 F.3d 1547, 1558 n. 12 (11th Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994). A state court's conclusion that counsel rendered effective assistance is not a finding of fact binding on a federal court. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984).

In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show both (1) that the identified acts or omissions of counsel were deficient, or outside the reasonable range of professionally competent assistance, and (2) that the deficient performance prejudiced the defense such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Courts need not address both these prongs “if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069. We begin any ineffective assistance inquiry with “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065; accord, e.g., Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir.1992) (“We also should always presume strongly that counsel's performance was reasonable and adequate....”), cert. denied, 515 U.S. 1165, 115 S.Ct. 2624, 132 L.Ed.2d 865 (1995). “[A] petitioner seeking to rebut the strong presumption of effectiveness bears a difficult burden.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc). “In evaluating ineffective assistance of counsel claims, this court places particular weight on the trial counsel's explanation of trial strategy, proffered at a state trial court or federal district court evidentiary hearing....” Card v. Dugger, 911 F.2d 1494, 1509 (11th Cir.1990).

Marek contends that his counsel was deficient in his failure to investigate, develop, and present mitigating evidence regarding Marek's childhood, mental state, and general background. Marek states that his defense counsel should have travelled to Texas, where Marek lived prior to the murder, and interviewed witnesses. At the evidentiary hearing in state court, Marek's counsel, Mr. Moldof (“Moldof”), testified that he made tactical, strategic choices not to present evidence with regard to Marek's past since Marek himself admitted most of the evidence would be negative. See R.-Vol. XVII, p. 381. Moldof did secure the assistance of a mental health expert, Dr. Krieger, and through conversations with Dr. Krieger and Marek, counsel collected information regarding Marek's background and early childhood.

The record reflects that Marek was abandoned by his natural family at the age of nine and was subsequently raised by several different foster families. Marek's parents and other family members, however, had little or no contact with Marek for years prior to the murder and counsel strategically determined that their testimony would have little value. The most Marek's parents could testify was that Marek overdosed on his mother's medication when he was eight or nine months old and Marek suffered from a speech impediment. The foster parents who were called to testify at the state evidentiary hearing had no real knowledge of Marek's criminal background but knew Marek had been in trouble in the past. See R.-Vol. XVII, pp. 206-260.

At the state evidentiary hearing, Marek called Dr. Krop, a psychologist, who testified that he reviewed medical and school records in anticipation of the Rule 3.850 proceeding. Dr. Krop stated that although he was critical of Dr. Krieger because he could have obtained more information, he ultimately came to the same conclusion as Dr. Krieger, that Marek suffered from a severe anti-social personality disorder. See R.-Vol. XVI, pp. 123-188. The state called Dr. Krieger to testify at the evidentiary hearing. Dr. Krieger stated that even with the new evidence presented at the hearing regarding Marek's background he would not have altered his evaluation and assessment of Marek. Moreover, Dr. Krieger stated that he was concerned that Marek may have exaggerated his symptoms and this testimony would not have done the defendant any good. R.-Vol. XVII, pp. 262-309.

Moldof testified at the state evidentiary hearing. See R.-Vol. XVII, pp. 312-400. Moldof stated that the defense he presented on Marek's behalf was the “lingering doubt” theory that Marek's codefendant Wigley may have committed the murder. Moldof made a strategic decision not to present an intoxication defense because of the physical evidence at trial and because he did not think the jury would believe Marek's assertion that he consumed several cases of beer on the day of the murder. Id. at 358 (juror rolled her eyes when Marek testified that alcohol did not affect him). Moldof did, however, argue intoxication as a mitigating factor to the jury at the penalty phase. Moldof also argued age as a mitigating factor at the penalty phase. Moldof made a tactical decision not to call Dr. Krieger to testify at the penalty phase because he believed that Dr. Krieger's testimony may have done more harm than good. Dr. Krieger indicated in his report that he thought Marek was malingering and if Dr. Krieger was cross-examined by the state, this information would have come to the jury's attention.

“Under certain circumstances, trial counsel's decision not to investigate family childhood background may legitimately be the product of a reasoned tactical choice.” Francis v. Dugger, 908 F.2d 696, 703 (11th Cir.1990) ( relying on Stanley v. Zant, 697 F.2d 955, 970 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984)), cert. denied, 500 U.S. 910, 111 S.Ct. 1696, 114 L.Ed.2d 90 (1991). This court has “never held that counsel must present all available mitigating circumstance evidence in general, or all mental illness mitigating circumstance evidence in particular, in order to render effective assistance of counsel.” Waters, 46 F.3d at 1511. “To the contrary, the Supreme Court and this Court in a number of cases have held counsel's performance to be constitutionally sufficient when no mitigating circumstance evidence at all was introduced, even though such evidence, including some relating to the defendant's mental illness or impairment, was available.” Id. (examples omitted).

“A defense attorney is not required to investigate all leads, however, and ‘there is no per se rule that evidence of a criminal defendant's troubled childhood must always be presented as mitigating evidence in the penalty phase of a capital case.’ ” Bolender, 16 F.3d at 1557 (footnote omitted) ( quoting Devier v. Zant, 3 F.3d 1445, 1453 (11th Cir.1993), cert. denied, 513 U.S. 1161, 115 S.Ct. 1125, 130 L.Ed.2d 1087 (1995)). “Indeed, ‘[c]ounsel has no absolute duty to present mitigating character evidence at all, and trial counsel's failure to present mitigating evidence is not per se ineffective assistance of counsel.’ ” Bolender, 16 F.3d at 1557 (citations omitted). The inquiry must be whether the failure to put this alleged mitigation evidence before the jury was a tactical choice by trial counsel. Id.FN3 If so, this tactical choice must be given a strong presumption of correctness. Id.

We are persuaded that Marek's counsel made a reasonable strategic decision not to present to the jury the alleged mitigating evidence of Marek's sad childhood. Moldof testified at the hearing that information on Marek's recent past, “why he left home, might be something of homosexuality which I thought would be very negative to this jury.” R.-Vol. XVII, pp. 324, 334. Moldof also noted the nature of the crime and tactically decided that evidence of Marek's troubled past would not “have altered their [the jury's] repugnance in this case.” Id. at 372-74. Moldof also made a tactical decision regarding Marek's Texas prison records. He did not obtain these records because if he “didn't bring it out probably the State wouldn't be able to get before the jury he [Marek] was ever incarcerated.” Id. at 336-37.

The record reflects that Moldof conducted a reasonable investigation with regard to mitigation evidence to be presented at the penalty phase of Marek's trial. Marek told Moldof that his background would not generate any helpful mitigating evidence and, in fact, following Dr. Krieger's recommendation and collecting information on Marek's background, Moldof came to the same conclusion. This case is an example of defense counsel's attempt to present, based on tactical decisions, the best possible mitigation to the jury and judge at sentencing. The evidence presented during the state evidentiary hearing convinces us that Moldof's representation fell within the reasonable range of attorney performance.

Even if counsel's performance were deemed deficient, Marek fails to show any resulting prejudice from the allegedly deficient performance. See Strickland, 466 U.S. at 699-700, 104 S.Ct. at 2071. Given the particular circumstances of this case and the overwhelming evidence against Marek, evidence of an abusive and difficult childhood would have been entitled to little, if any, mitigating weight. See generally Francois v. Wainwright, 763 F.2d 1188, 1190-91 (11th Cir.1985). Accordingly, Marek fails to satisfy both prongs of the Strickland standard and, therefore, the district court properly concluded that Marek's counsel did not render ineffective assistance of counsel.

B. Preclusion of Mitigating Evidence

Marek contends that the sentencing court violated the principles of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), when it precluded Marek from presenting and the jury from considering, evidence of mitigating factors. Marek's claim is threefold. He argues defense counsel was precluded from presenting mitigation to the jury (1) when counsel attempted to introduce a psychological report evaluating Marek and the trial court did not allow the admission of the report because the doctor was available to testify; (2) when defense counsel attempted to argue that Marek's codefendant received a life sentence and thus, Marek should receive equal treatment but the trial court disallowed this argument unless the state could disclose the contents of the codefendant's confession relating to the culpability of each defendant; and (3) when the trial court did not instruct the jury regarding no significant history of criminal activity as a mitigating factor. We will discuss each contention in turn.

1. Dr. Krieger's report

Marek did not raise this particular claim on direct appeal, but raised it for the first time in his post-conviction proceedings in state court. Following an evidentiary hearing, the trial court found this issue to be procedurally barred. Upon review of Marek's Rule 3.850 petition, the Florida Supreme Court affirmed the trial court's decision finding that the issue was procedurally barred because it could have been, but was not, raised on direct appeal. See Marek v. Dugger, 547 So.2d 109 (Fla.1989). The federal district court also found this issue to be procedurally defaulted because it had not been properly and fairly raised in the state courts, relying on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See R.-Vol. 4, Exh. 33, p. 5-6. Alternatively, the district court found that:

The state court refused to allow Marek's psychological report to be introduced into evidence by itself, adjudging the report to be hearsay. Marek's psychologist was available to testify, yet Marek's counsel made a strategic decision not to use the doctor's testimony. There was no limitation on the presentation of this evidence to the jury, hence, no violation occurred. Id. (citations omitted).

A state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitutional claims in state court, or who attempts to raise claims in a manner not permitted by state procedural rules, is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506 (1977). “[W]here the state court correctly applies a procedural default principle of state law, Sykes requires the federal court to abide by the state court's decision.” Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.), cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 68 (1990). A federal court is not required to honor a state procedural ruling unless that ruling rests on an adequate and independent state ground. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). If the last state court rendering a judgment in the case “clearly and expressly” states that its judgment rests upon a state procedural bar, then the federal court may be barred from considering that claim. Id. at 263, 109 S.Ct. at 1043. “However, should a state court reach the merits of a claim notwithstanding a procedural default, the federal habeas court is not precluded from considering the merits of the claim.” Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.), cert. denied, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). When a state court addresses both the independent state procedural ground and the merits of the federal constitutional claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim. Id.

Marek may overcome his procedural default by showing cause for the procedural default and resulting prejudice. Cause requires a showing of some objective factor external to the defense, Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986), which prevented counsel from constructing or raising the claim. McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). This Marek has failed to do. Accordingly, we hold that the district court properly concluded that this claim is procedurally defaulted and we decline to reach the merits of the claim. See Alderman, 22 F.3d at 1549.FN4

FN4. We hold in the alternative that the claim lacks merit because counsel was not precluded from presenting this alleged mitigating evidence. He made a tactical choice not to have Dr. Krieger testify. See discussion A infra. Since there was no preclusion, there is no error. See generally Hitchcock, 481 U.S. at 394, 107 S.Ct. at 1822. See also Horsley v. Alabama, 45 F.3d 1486, 1489 n. 6 (11th Cir.1995).

2. Evidence of codefendant's sentence

Marek also contends that his counsel was precluded from presenting evidence of his codefendant's life sentence in mitigation. A related but different claim was raised on direct appeal. The Florida Supreme Court concluded that Marek's claim that the trial court erred in sentencing him to death in view of the fact that the judge had previously sentenced his codefendant to life in prison for the same offense, was not “cruel and unusual, arbitrary, and unequal.” Marek v. State, 492 So.2d at 1058. The court observed that the evidence clearly established that Marek was the more dominant of the two. The federal district court determined that this issue was procedurally defaulted and alternatively found that the state court's factual determination that Marek was the dominant actor was entitled to deference pursuant to Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The federal district court concluded that Marek's claim that the sentencing court erred in not allowing mitigating evidence of the disproportionate sentences must be denied. R.-Vol. 4, Exh. 33, p. 5.

The district court properly found this claim was procedurally defaulted because Marek failed to raise this specific claim on direct appeal. Marek raised this claim in his post-conviction proceedings and both the state trial court and the Florida Supreme Court found this issue to be procedurally barred. Marek has failed to show cause for and resulting prejudice from the procedural default. See Sykes, 433 U.S. at 87, 97 S.Ct. at 2506. Accordingly, the district court properly concluded that the claim was procedurally defaulted. See discussion infra B. 1.

We note, however, that the district court was correct in affording deference to the state court's finding that Marek was the dominant actor. The record evidence amply supports this finding. Both Marek and the victim's traveling companion testified that Marek was the more talkative; that codefendant Wigley remained in the truck during Marek's attempts to fix the car; that Marek persuaded the victim to get in the truck with the two men; that three witnesses who came into contact with Marek and the codefendant on the beach around the time of the murder testified that Marek appeared to be the more dominant of the two; and that only Marek's fingerprints were found inside the observation deck where the body was discovered. See Marek v. State, 492 So.2d at 1058. Thus, in light of this evidence, the alleged mitigating evidence of codefendant Wigley's life sentence may not have been mitigating after all. See Demps v. Dugger, 874 F.2d 1385, 1390-91 (11th Cir.1989) (op. of Fay, J.), cert. denied, 494 U.S. 1090, 110 S.Ct. 1834, 108 L.Ed.2d 963 (1990)); id. at 1395-96 (Clark, J., concurring). Accordingly, Marek's claim lacks merit.

3. No significant criminal history

Marek also contends that the trial court erred in failing to instruct the jury that he had no significant criminal history. The record reflects that at trial, defense counsel sought to have the jury instructed regarding this mitigating circumstance. R.-Vol. IX, Exh. A-11, p. 1284. The trial court ruled that if the jury was so instructed, the prosecution would be able to bring up Marek's felony conviction in Texas. Id. At that point, defense counsel made a strategic decision not to argue this mitigating factor to the jury. There was no limitation or restriction placed on defense counsel with regard to presentation of mitigating factors. See Hitchcock v. Dugger, 481 U.S. at 394, 107 S.Ct. at 1822. Accordingly, Marek is entitled to no relief on this claim.

C. Jury instructions on Aggravating and Mitigating Factors

In determining the appropriateness of the death sentence recommended by the jury, the judge found four aggravating factors and no mitigating factors. The court found that the murder was committed during the course of a kidnapping, a felony involving the use or threat of violence; that the murder was committed while Marek was engaged in the commission of an attempted burglary with the intent to commit sexual battery, and in the course thereof, committed an assault; that the murder was committed for pecuniary gain; and that the murder was especially heinous, atrocious, and cruel.

The state argues, and the district court found, that Marek's allegations regarding the jury instructions on the aggravating factors are procedurally defaulted. On direct appeal, Marek challenged the sufficiency of the aggravating factors, not the instructions. The Florida Supreme Court found all four aggravating factors were proven beyond a reasonable doubt. Marek v. State, 492 So.2d 1055, 1058 (Fla.1986). Marek first challenged the jury instructions on the aggravating factors in his Rule 3.850 motion. Thus, the district court concluded that Marek's challenge to the jury instructions was procedurally defaulted because he did not raise this specific claim on direct appeal. See Sykes, 433 U.S. 72, 97 S.Ct. 2497.

Following the district court's decision and after Marek's appeal to our court, Marek filed a second state habeas petition. Upon review of that petition, the Florida Supreme Court determined that Marek's challenge to the use of his contemporaneous kidnapping conviction as an aggravating factor was procedurally barred. Furthermore, the supreme court found that the jury instruction on kidnapping as an aggravating circumstance could not have affected the jury's recommendation and that any error was harmless beyond a reasonable doubt. We agree. See Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Florida Supreme Court noted that the jury found Marek guilty of kidnapping prior to receiving the instruction on kidnapping as an aggravating factor in the penalty phase and consequently, without receiving the instruction, the jury still had the information concerning Marek's conduct in regard to the kidnapping. Furthermore, we note that even without this aggravating circumstance there were three other aggravating circumstances and no mitigating circumstances. Thus, Marek cannot show that this alleged error had a “substantial and injurious effect” on the jury's determination. Brecht, 507 U.S. at ----, 113 S.Ct. at 1722 (quotations omitted).

Marek's remaining challenges to the jury instructions on the aggravating factors are procedurally defaulted. Marek fails to establish “cause and prejudice” sufficient to excuse his failure to present these claims on direct appeal. McCleskey, 499 U.S. at 493-94, 111 S.Ct. at 1469-70 (1991). However, Marek may make a colorable showing that he is “actually innocent of the death penalty by presenting evidence that an alleged constitutional error implicates all of the aggravating factors found to be present by the sentencing body.” Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir.1991) (en banc) (emphasis in original), cert. denied, 506 U.S. 930, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992).

That is, but for the alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the petitioner was ineligible for the death penalty. In other words, the petitioner must show that absent the alleged constitutional error, the jury would have lacked the discretion to impose the death penalty; that is, that he is ineligible for the death penalty. Id. (footnote omitted) (emphasis in original). See also Sawyer v. Whitley, 505 U.S. 333, 347 n. 15, 112 S.Ct. 2514, 2523 n. 15, 120 L.Ed.2d 269 (1992) (quoting and specifically approving the Johnson standard). Marek cannot meet this standard. Regardless of the inapplicability of the aggravating factor that the murder was committed during the course of a violent felony, the kidnapping, the record supports the district court's finding that the remaining aggravating factors are valid. See also Marek v. State, 492 So.2d at 1058. The aggravating factor that the murder was committed for pecuniary gain was affirmed by the Florida Supreme Court and must be given deference considering the evidence of the victim's jewelry which was found in the truck Marek was driving. Additionally, the aggravating factor that the crime was heinous, atrocious, and cruel is amply supported by the facts and circumstances of the murder. See id. Any reasonable juror would have concluded that Marek's actions fit this description. Accordingly, Marek is still eligible for the death penalty, and the actual innocence exception does not apply.

V. CONCLUSION

Based upon the foregoing discussion and for the reasons stated in the district court's opinion, we affirm the district court's judgment denying habeas corpus relief. AFFIRMED.